Copyright (c) 2009 All rights reserved. http://works.bepress.com/elizabeth_reilly Recent documents in Elizabeth Reilly en-us Thu, 29 Oct 2009 23:21:18 PDT 3600 http://works.bepress.com/elizabeth_reilly/13 http://works.bepress.com/elizabeth_reilly/13 Wed, 28 Oct 2009 06:32:52 PDT From the perspective of both religious entities and local governments, religious land use requests are best resolved quickly, locally and cooperatively. The traditional framework for addressing religious land use disputes, which the Religious Land Use and Institutionalized Persons Act (RLUIPA)1 adopted, is ill-suited to those goals. Legally, disputes have long been framed as denials of the free exercise of religion - the broadest of all claims and the one requiring the most intrusive and subjective determinations about a particular religious group and its proposed use (what religion is, what a particular sect requires and how religion qua religion is affected by land use decisions).I propose that the best method for analyzing land use decisions should be simple to apply, rely upon external and objective evidence to the greatest extent possible, create incentives for cooperation and resolution, reduce antagonism, and be deferential to both religious users and local government decisions. That can be better accomplished by flipping the traditional order of analysis by determining: first, if the land use decision violates Establishment clause norms; next, if it violates Equal Protection norms; and then, and only then, if the neutral decision nonetheless amounts to a denial of Free Exercise norms. Elizabeth Reilly http://works.bepress.com/elizabeth_reilly/12 http://works.bepress.com/elizabeth_reilly/12 Wed, 28 Oct 2009 05:50:24 PDT The original prototype of Section One of the Fourteenth Amendment, as introduced by its primary Framer, John Bingham of Ohio, read: The Congress shall have the power to make all laws which shall be necessary and proper to secure to the citizens of each State all privileges and immunities of citizens in the several States, and to all persons in the several States equal protection in the rights of life, liberty, and property. Bingham went on to note expressly that "save the words conferring the express grant of power to the Congress," the principles of the rights were already in the Constitution. Had the power been given to Congress to enforce obedience to those principles, Bingham maintained that "that rebellion" would have been "an impossibility." Nonetheless, that power had been withheld "by every construction of the Constitution, its contemporaneous construction, its continued construction, legislative, executive, and judicial." Adherence to those "immortal bill of rights" had up to that point rested solely upon "the fidelity of the States." In Bingham's mind, the power in Congress to enforce the rights was not only "the want of the Republic," but also "absolutely essential to American nationality." On behalf of the Joint Committee on Reconstruction, Bingham recommended the amendment "for the purpose of giving to the whole people the care in future of the unity of the Government which constitutes us one people, and without which American nationality would cease to be."Thus did the Amendment and its framers herald the importance of Congress to meeting the purposes of the Amendment, especially the purposes of its grants of individual rights. Consistent with Republican legal and political ideology of the time, the necessity of congressional power and an affirmative grant of that power infused the Amendment from its inception.Nonetheless, concern about restricting the role of Congress was raised in the first case in which the Supreme Court interpreted the Amendment, Slaughter-House Cases, despite its inapplicability to its three years later in United States v. Cruikshank. In both instances, preservations of state power in the federal system and concerns about congressional vs. state power to define and protect rights underlay the reasoning. Recently, one of the most important and contentious issues in Fourteenth Amendment jurisprudence relates to Section Five of the Amendment and Congress' power with respect to individual rights. The Court continues to impose significant restraints on federalism grounds. But current decisions also specifically raise separation of powers concerns when determining the reach of the congressional Section Five power. Therefore, it is important to explore Section Five from the separation of powers perspective. I argue that the power conferred also encompassed a re-envisioning of the roles and boundaries of judicial and legislative power vis-à-vis individual rights.Throughout the debates during the framing and ratification of the Amendment, an understanding of the need to recast the Union was coupled with the understanding that to do so, the Constitution itself needed to repudiate doctrines that had undermined both union and liberty. This article argues that in reconstituting that Union, the 39th Congress and the Fourteenth Amendment not only altered the fundamental structural principles of the relationship between the states and the national government and the responsibility of government to protect individual liberties. It argues that the original structural alignment of national powers and the boundaries of their respective spheres were also, of necessity and by understanding, recast as well. Elizabeth Reilly Constitutional Law http://works.bepress.com/elizabeth_reilly/11 http://works.bepress.com/elizabeth_reilly/11 Tue, 27 Oct 2009 13:11:13 PDT The Fourteenth Amendment embodies hope. This article introduces the Symposium celebrating the 140th anniversary of its ratification, held at the University of Akron. The symposium was a fruitful occasion to reflect upon the meaning of the Amendment to its Framers in Congress and as it was initially interpreted by the United States Supreme Court and the public, and to examine the lasting impacts of both conceptions. Our participants especially examined three of the Supreme Court's earliest forays into applying the Fourteenth Amendment: The Slaughter House Cases, Bradwell v. Illinois, and Cruikshank v. United States. Those forays succeeded in cramping the Amendment's majesty and power in contravention to its design, intent, and language. Although our participants disagree about the extent to which the Court intended to or needed to be read as having eviscerated its meaning, all seem to agree that the propulsive force of the Amendment for legal change withered in the aftermath of those decisions. The authors also demonstrate the opportunities left open to use unaffected clauses to accomplish the goals of the Amendment. Several authors explore how the Amendment was incorporated into the public consciousness and used by citizens to reimagine the fabric of American life in ways that carried forward the promise of the Amendment. The symposium begins with general historical reviews of the Amendment in Congress, the public context against which it was enacted, its early application in the Supreme Court and the impact of those narrowing decisions upon the Amendment. It moves to an exploration of the doors that the early cases may have left ajar for future use to reinvigorate the promises of the Amendment and achieve its framer's goals. Although the main focus of our authors is upon legal arguments, they also examine the force of political expediency to support legal arguments or to prevent their being made in ways that might destabilize the fragile union. The third segment of the symposium looks much more directly at the impact of the actual public response to the Amendment and its meaning, and how that public response shaped the Amendment as well as keeping alive its potential to revise the fabric of American life and law. As with the abolitionists in the antebellum period, the understandings and actions of the people profoundly influenced the Amendment's legal as well as cultural meaning. Although most of the participants focus primarily or exclusively on Section One of the Amendment, one explicates the impact of Section Three and the intrigue accompanying its application against Jefferson Davis and another examines Section Five as an alteration to separation of powers as well as federalism principles. The development and meaning of the Amendment, even for contemporary and future use, is intimately related to the past. We cannot avoid continuing to ask vital questions and seek answers to them. What the Amendment meant in the past and how it has been interpreted and applied throughout its 140 years of existence have resonance today. Elizabeth Reilly Constitutional Law http://works.bepress.com/elizabeth_reilly/10 http://works.bepress.com/elizabeth_reilly/10 Wed, 13 Feb 2008 07:29:36 PST This paper describes a process used by The University of Akron to address salary compression. The process allocates salary adjustment resources to disciplines based on relative salary ratios derived from benchmarks. Amounts earmarked for specific disciplines are then distributed to departments for allocation to individual faculty based on merit. The process also invokes concepts of fairness and equity, and includes a component distributed to productive faculty members based on rank and experience. Outcomes, challenges, and implications of the process are examined. Elizabeth Reilly Salary Compression http://works.bepress.com/elizabeth_reilly/9 http://works.bepress.com/elizabeth_reilly/9 Wed, 13 Feb 2008 07:12:56 PST Elizabeth Reilly Damages http://works.bepress.com/elizabeth_reilly/8 http://works.bepress.com/elizabeth_reilly/8 Wed, 13 Feb 2008 06:59:56 PST Elizabeth Reilly Damages http://works.bepress.com/elizabeth_reilly/7 http://works.bepress.com/elizabeth_reilly/7 Tue, 12 Feb 2008 07:47:28 PST Mark Schmucker taught me about freedom. United States v. Schmucker II taught me about institutional power.The security we derive from liberty depends upon its exercise. Freedom is like a social muscle. It atrophies with disuse. First amendment liberties have been described as 'hazardous freedoms.' Are the freedoms hazardous to entrenched and insecure governments, hazardous to the very idea of government, or hazardous to those few who take them seriously enough to rely upon them to act? Good government depends upon the hazard of open dissent. Well-developed theories behind freedom of expression support a thesis that free expression is good precisely because it challenges the government to reassess its policies and to adapt to dissent as a positive influence. If so, it is peculiarly inappropriate to penalize those whose strength of idea and character permits the effective utilization of this liberty. Elizabeth Reilly Constitutional Law http://works.bepress.com/elizabeth_reilly/6 http://works.bepress.com/elizabeth_reilly/6 Mon, 11 Feb 2008 17:41:55 PST This article attempts to expose and clear away the debris which the law has contributed to our national struggle. Part II analyzes the Supreme Court's view of women and brings to light unacceptable premises about women's moral capacities and reproductive roles which have contaminated public belief and debate. Part III focuses upon the privacy cases to reveal the premises they have adopted. Those premises are dissonant with any intended protections of moral judgment or reservation of decisionmaking power to women. By incorporating these premises, the law of abortion rights has imbedded within itself a conflict with women and disrespect for women's moral judgments. The Conclusion suggests how the unacceptable premises of Supreme Court jurisprudence have contaminated the abortion cases, and led to the current impasse. The faulty premises that have perverted legal analysis must be changed for constructive movement to occur.With the defective premises exposed, we can reevaluate abortion jurisprudence. The pernicious effects of such unexamined premises can then be understood and repudiated. We can seek and incorporate more helpful and viable premises. With this larger task in mind, I have taken the first steps toward a new premise in this article.Let us respect our differences and accept the responsibility inherent in our common ground. Elizabeth Reilly Reproductive Rights http://works.bepress.com/elizabeth_reilly/5 http://works.bepress.com/elizabeth_reilly/5 Mon, 11 Feb 2008 17:26:54 PST Two realities make continuing disagreement likely: the limits of human knowledge and the diversity of moral belief systems. Because disagreement will persist, we must learn to respect each others' positions. Without this respect, neither law (be it constitutional law or legislative law) nor politics (be it formal politics or informal public discourse) can provide an arena within which to address the multiple issues surrounding procreation, especially the issue of abortion, in a constructive way. The public debate in which we are mired is proof of the current failure of the political process to provide a workable vehicle for confronting these issues. Even as the issues are being returned in some measure to the legislative process, as a result of the undue burden test adopted in Casey, the public discourse has not improved. The political process cannot provide for constructive confrontation of the issues of procreation and abortion.The failure of politics and public discourse is due in part to unstated negative assumptions about the moral, social and political value of procreative liberty, about women and their moral capacity to make decisions, and about procreation, all of which premise the Supreme Court's abortion jurisprudence and infect the public debate. By analyzing the Supreme Court's abortion jurisprudence, this article documents the profound lack of respect for the morality of the abortion choice, for women, and for their ability to make good moral choices that infects the law and makes the procreative liberty debate so intractable in our society. The article then suggests alternative premises on which to ground a workable jurisprudence and policy addressing procreative choices.Part I examines the Supreme Court's abortion cases to expose the flawed premises that are incorporated into current analysis of the abortion issue.Part II critiques those substantive premises as inapt and insufficient to ground rights or enable dialogue and solutions in the context of procreative decisionmaking.Part III critiques the analytical process used for procreative rights, exploring its negative impact upon the resolution of constitutional and policy disputes involving such issues.Part IV suggests new premises to replace the existing problematic premises, in pursuit of a viable jurisprudence of procreative liberty.The issue is: What is the role of people in human procreation and what is the role of government? The answer requires a decision: should procreative choices be made by rules or with responsibility and love? Government can only control procreation by rules. But individuals can make choices, and choices can be made responsibly. Opting for procreation with responsibility requires respect--and trust. Failure to remove decisionmaking from the political arena and entrust it to individual hands will doom the societal response to the issues surrounding procreation. Elizabeth Reilly Reproductive Rights http://works.bepress.com/elizabeth_reilly/4 http://works.bepress.com/elizabeth_reilly/4 Mon, 11 Feb 2008 17:18:20 PST Thinking about the interaction between the Constitution and education reveals that they are deeply interconnected, at profound levels of interdependence and complexity. Those connections are often strikingly visible, but are sometimes quite subtle.A fundamental interdependence was formed with the decision to formulate our governmental structure as a democratic republic. The Constitution created the necessity for adequate public education to prepare the citizenry to exercise the role of self-government. An educated voting public underpins a successful democratic structure, as was explicitly recognized in Brown v. Board of Education, in which the Court acknowledged:the importance of education to our democratic society. It is required in the performance of our most basic public responsibilities . . . . It is the very foundation of citizenship. Today it is the principal instrument for awakening the child to cultural values, in preparing him for later professional training, and in helping him to adjust normally to his environment." But it is not only our political system that is dependent upon a viable and successful educational system. Our economic system also proclaims its reliance upon well-trained and educated workers. And our social system rests on two largely accepted goals that each require access to education--the "melting pot" which requires the successful absorption of diverse immigrant populations into a pluralistic social and cultural structure, and "upward mobility" which requires the permeability of class barriers. Both goals are achieved substantially through the education system. Elizabeth Reilly Legal Education