Supreme Court Decisions

About: Supreme Court Decisions is a research topic. Over the lifetime, 1804 publications have been published within this topic receiving 17066 citations.

"We Do Not Preach, We Teach.": Religion Professors and the First Amendment

Abstract: This article examines the interaction of academic and constitutional arguments about teaching religion. It begins by describing the early perception that teaching religion in public universities is unconstitutional. I then explain that the academics, responding in 1963 to Supreme Court dicta in Schempp that teaching about but not of religion is constitutional, chose a subject matter standard according to which the teaching of religious studies, but not theology, is constitutional in state universities. About/of was never the Court's standard, however. Unlike the scholars, the justices often promoted an institutional principle that ignored the content of the courses and focused on the religious or public nature of the schools. Although recent Supreme Court decisions suggest that the Court does not accept the about/of line, the religion professors have not yet revisited their constitutional or academic standards. I conclude that the religion professors misinterpreted Schempp; teaching theology, but not evangelism, is constitutional.

The New Scrutiny

Abstract: For years, lawyers and law professors could give an abbreviated but accurate description of judicial administration of the Constitution in stating that when constitutional values come to court, judicial scrutiny on their behalf generally takes one of two forms, mere rationality review or heightened scrutiny. Like many models, this one glossed a considerably grainier reality, but overall it captured Supreme Court decisions very well. This model, called here the old scrutiny, still has countless users and proponents, but it no longer describes American constitutional law as it has been stated and practiced by a majority of the Rehnquist Court. This Article will explore the reasons and methods of the Justices who make up this new majority, and the narrative of constitutional history they have produced that is calculated to legitimate the legal transformation they are leading. Part I of the Article explains that the old scrutiny fails to comfortably describe the most important new decisions, doctrines, and debates of the Rehnquist Court because in disciplined fashion, the new majority has been purging the old scrutiny, overruling or displacing the precedents that symbolized its commitments and methods and installing in their stead decisions that reflect a reordered hierarchy of constitutional values. Part II of the Article explains that the resulting jurisprudence is not a patternless passel of opinions that share in common only their disenchantment with the old scrutiny's objectives and manners. Rather, a new scrutiny is emerging with a logic and structure of its own, centering upon a conception of constitutional well-being, here termed measured reasonableness. The structure and texture of this new conception are defined by four distinct techniques which the Article explores, complicating the picture but also lending it comprehensiveness and coherence.

The Economics of Class Actions and Class Action Waivers

Abstract: Class action litigation has generated a series of recent Supreme Court decisions imposing greater federal court supervision over the prosecution of collective injury claims. This group of cases raises the question whether class action waivers should be permitted on policy grounds. I examine the economics of class actions and waivers in this paper. I distinguish between the standard one-on-one litigation environment and the class action environment. In the standard environment, waivers between informed agents enhance society’s welfare. In the class action environment, in contrast, not all waivers are likely to enhance society’s welfare.