Loyola University Chicago Law Journal

http://lawecommons.luc.edu/luclj

List of Papers (Total 1,585)

Federal Election Commission v. Ted Cruz for Senate: How the Supreme Court Is Clearing the Way for Corruption in Politics

Political speech lies at the heart of the First Amendment. Candidates for office have the constitutional right to raise funds to express their viewpoints, run campaigns, and associate with their supporters. However, leaving this flow of money unchecked creates a risk that candidates will sell the promise of political favors for increased monetary support from voters. Congress...

Mandatory Judging

As a matter of judicial ethics, judges must disqualify themselves in matters in which their impartiality may reasonably be questioned. This key principle implicates two additional aspects of judicial ethics: the duty to sit and the rule of necessity. The duty to sit basically describes a judge’s duty to preside over a case unless disqualified as a matter of judicial ethics. Or...

When Claims Collide: Students for Fair Admissions v. Harvard and the Meaning of Discrimination

This term, the Supreme Court will decide Students for Fair Admissions v. President and Fellows of Harvard College (SFFA v. Harvard), a challenge to Harvard College’s race-conscious admissions program. While litigation challenging the use of race in higher education admissions spans over five decades, previous attacks on race-conscious admissions systems were brought by white...

Razing & Rebuilding Delinquency Courts: Demolishing the Flawed Philosophical Foundation of Parens Patriae

Professor Eduardo R. Ferrer of Georgetown University explores the history and background of the juvenile delinquent system in the United States. Professor Ferrer argues that the philosophical underpinnings of our legal youth systems, under the concept of parens patriae, have led to failure with regard to how states care for children that come under their control—and ultimately...

From Conciliation to Conflict: How Dobbs v. Jackson Women's Health Organization Reshapes the Supreme Court's Role in American Polarized Society

Professor Shai Stern of Bar Ilan University in Israel analyzes the Court’s decision and argues that its approach not only denies a previously recognized constitutional right, but also opens the door for the challenge to other recognized rights. In addition, Professor Stern highlights the Court’s own delegitimization and contribution to rising political polarization.

The Major Questions Doctrine: Judicial Activism That Undermines the Democratic Process

Professor Warren Grimes of Southwestern Law School discusses the advent of the ‘major questions’ doctrine in recent Supreme Court jurisprudence, and argues that this school of thought is a form of judicial activism that improperly hinders executive agencies, Congress, and democratic governance as a whole.

Introduction to Issue Three

By Paul W. Kucinski, Published on 01/01/23

Locating Free-Exercise Most-Favored-Nation-Status (MFN) Reasoning in Constitutional Context

This Article examines the theoretical and doctrinal origins and consequences of a potentially game-changing approach to processing claims brought under the Free Exercise Clause of the First Amendment. Since 1990, and the decision in Employment Division v. Smith, the Court has read that Clause not to require accommodation of religious activity via exemptions from religion-neutral...

The Establishment Clause, Civil Rights, and the Accomodationist Path Forward

The U.S. Supreme Court’s First Amendment Religion Clause doctrine is undergoing a transition between the Court’s older, strict separationist decisions and its current accommodationist approach. This shift can be seen in the Court’s most recent Establishment and Free Exercise Clause decisions, and in particular, in its unanimous Free Speech Clause decision in Shurtleff v. City of...

Independent and Overlapping: Institutional Religious Freedom and Religious Providers of Social Services

Roughly two decades ago, scholarly interest in the limits of government involvement in religious institutions exploded. Scholars explored distinctions between the spiritual and temporal dimensions of human activity and identified numerous individual, social, spiritual and civic goods associated with independent religious groups. From these foundations, they defined and refined...

Curriculum Censorship of LGBTQ+ Identity: Modern Adaptation of Vintage "Save Our Children

Underpinning Florida’s 2022 “Don’t Say Gay or Trans” law is the same vintage, discriminatory rhetoric that has been invoked to harm LGBTQ+ people for decades: that LGBTQ+ people are deviant and fundamentally sexual, therefore even the most chaste acknowledgement of the existence of LGBTQ+ people is inherently inappropriate for children. LGBTQ+ students, students with LGBTQ...

Families, Schools, and Religious Freedom

Old and New Testament scriptures persistently point to human beings’ romantic and familial relationships according to Christian norms as means of glimpsing foundational religious beliefs about God’s identity, how God loves human beings, and how human beings are to love Him and one another. Christian families, therefore, are alarmed to witness public schools educating minors using...

The New Thoreaus

Fifty years ago, in Wisconsin v. Yoder, the Supreme Court famously indicated that “religion” denotes a communal rather than a purely individual phenomenon. An organized group like the Amish would qualify as religious, the Court wrote, but a solitary seeker like the nineteenth century transcendentalist Henry David Thoreau would not. At the time, the question was mostly peripheral...

Religious Nondelegation

The problem of religious exemptions has given rise to a rich body of scholarly literature, as well as a flood of litigation. One recent set of cases involved challenges to the Affordable Care Act’s (ACA) health care mandates—Section 1557 and the contraceptive mandate—and their religious exemptions. Some scholars have argued that religious exemptions violate the Establishment...

Is Church Autonomy Jurisdictional?

The First Amendment’s religion clauses create what courts have called “church autonomy doctrine,” protecting the internal self-governance of religious institutions. But courts are divided as to whether this doctrine is simply an affirmative defense for religious institutions or a jurisdictional limitation on courts’ ability to adjudicate internal religious matters. Scholars...

Justice Alito, Originalism, and the Aztecs

By Andrew Koppelman, Published on 01/01/23

Constructing the Establishment Clause

In this Article, we attempt to document how the history of the Supreme Court’s Establishment Clause jurisprudence is a history of constructionism, much of it—though not all—originalist in flavor. We use “construction” in a technical sense and in contradistinction to “interpretation.” Construction is the act of importing meaning into the constitutional text. To document and...

Remote Hearings: Let's Not Forget the Cost of What's Lost

By James V. Noonan and Judge Patrick T. Stanton, Published on 01/01/22

The Rise and Fall of Group Libel: The Forgotten Campaign for Hate Speech Laws

It is well-known that there is no “hate speech” law in the United States. This has been criticized, especially given the existence of robust hate speech laws in other nations. The absence of hate speech laws in American law has been attributed to legal, cultural, and historical factors, including speech protective First Amendment jurisprudence and long-standing skepticism of...

Lies, Damn Lies, and Kamikaze Lies: Protecting Falsehoods in the Name of Truth

Despite calls to reverse New York Times v. Sullivan--calls offered by two Supreme Court Justices, several legal scholars, and some members of the popular press--this Article demonstrates that Sullivan's protections have never been more relevant or more necessary, particularly in light of an epidemic of malicious, often strategic falsities, as well as overt assaults on the...

Answering the Cyber Oversight Call

In the past few years, a revised cyber strategy, a spate of new cyber authorities, and revamped presidential directives have significantly expanded the cyber capabilities of the U.S. military. This expansion has coincided with a weakening and dispersion of traditional congressional oversight mechanisms, creating a separation of powers mismatch. This mismatch, and the necessarily...

Lessons of the Plague Years

The COVID-19 pandemic has challenged governments of every description across the globe, and it surely would have tested the mettle of any American administration. But the pandemic appeared in the United States at a particularly inopportune time. January 2020 marked the beginning of a presidential election year in a deeply polarized country. President Donald Trump was a...

American Kaleidoscope: An Intersectional Approach to the Cultural Defense

The cultural defense is a controversial legal strategy that allows criminal defendants to offer evidence of their native culture to mitigate culpability. While courts usually decline to formally consider these defenses, cultural influences are increasingly present in the courtroom, demanding recognition in the midst of a Eurocentric legal system. The cultural defense can be an...