Creating Peaceful Coexistence Through Virtue: A Theological Approach to Institutional Religious Freedom, Equality, and the First Amendment

(Excerpt) In the current era of fraught tension between religious freedom and equality, scholars from across the spectrum of perspectives have called for generosity, empathy, and compromise from both sides. Drawing from chapters in my book A Principled Framework for the Autonomy of Religious Communities: Reconciling Freedom and Discrimination, in this Article I propose to give substantive content and criteria to such exhortations by adopting a theological perspective which aims to create peaceful coexistence through cultivating and applying Christian virtues such as love, grace, forgiveness, humility, and patience. Together, these virtues recognise the inherent worth of all humans as created in the image of God. These virtues also recognise a willingness to permit genuine difference, even profound moral disagreement, and loving neighbour as self by aiming to persuade to what is true and good while also accepting freedom to reject and disagree with the most deeply held convictions—whatever they may be. In Part I of the Article, I outline this theological framework before addressing a series of objections regarding the compatibility with and application of this framework to a liberal, pluralist democracy. In Part II, I turn to the First Amendment specifically, focusing on the Establishment Clause and the Free Exercise Clause as they apply to religious communities, including institutions and vendors. Using the theological virtues as a standard, I critique First Amendment jurisprudence to determine the extent to which it creates peaceful coexistence and offer some thoughts on how tensions may be reconciled. In particular, the Establishment Clause can be interpreted to prevent government interference with religious communities, but ambiguities in interpretation based on secularist “separation” approaches can restrict the ability of religious communities to participate in public life, undermining peaceful coexistence. Similarly, the Smith interpretation of the Free Exercise Clause undermined peaceful coexistence by preventing only overt and explicit discrimination against religious exercise. However, more recent decisions have started to recognise that generally applicable laws, such as anti-discrimination laws, can undermine peaceful coexistence by placing substantial burdens on religion, which damages the good of religious entities. I suggest narrow and clear religious anti-discrimination exemptions for religious vendors as best upholding the dignity of both parties and promoting a society where people of deep moral difference can peacefully coexist by recognising their respective right to meaningfully participate in and contribute to public life. Finally, the ministerial exception, in principle, upholds peaceful coexistence because it allows a religious community to select and regulate staff in accordance with a religious ethos, maintaining the dignity of the members of that organisation and enabling them to distinctively contribute to public good. However, the exception is arguably too broad as it stands because it allows discrimination on the basis of attributes unrelated to religion. This undermines the theological virtues of trust, kindness, and love of neighbour by potentially allowing malicious discrimination unrelated to upholding an ethos. A more limited exception on the basis of religion or religion-related conduct would better uphold peaceful coexistence in more practical terms

The Gatekeepers: How State Bar Associations\u27 Disciplinary Process Is Racialized and Classist

(Excerpt) Modern U.S. legal ethics and attorney regulations exist for three ostensible goals: to protect clients from unprofessional lawyers, to compel ethical performance from all licensed attorneys, and to safeguard the legal profession’s freedom to self-regulate. However, a recent study conducted by the California Bar Association revealed attorney regulation is more racialized and classist than these objectives suggest. The study explored attorney disciplinary action and found significant disparities in probation and disbarment along race and class. Put simply, the Bar functioned more to police the “other” than to protect the rights of consumers and the profession. These disparities are not unique to California. Rather, the formation of modern bar associations, particularly the American Bar Association (“ABA”), which other states model their ethics regulations after, reveals a pattern of discrimination against non-white and non-affluent lawyers. We argue this discriminatory pattern demonstrates that Bars function as racial and classist gatekeepers rather than as consumer protection agencies or representative ethics organizations. First, we review the ABA’s formation and how it shepherded the standardization of legal training and licensing processes. Second, we explore the genesis of legal ethics enforcement as promulgated by the ABA. Third, we track the fitful development of legal ethics. Fourth, we examine enforcement structures and trends, focusing on diverse states. Lastly, we propose solutions to dismantle the gatekeeping function embedded in Bar disciplinary processes

Time Traveling with the Foreclosure Abuse Prevention Act: New York’s New Law and the Constitutionality of Retroactivity

(Excerpt) This Note argues that the Foreclosure Abuse Prevention Act should be interpreted to apply retroactively and that retroactivity is constitutional. Part I will survey the history of the foreclosure crisis that led to the abusive litigation tactics that made FAPA necessary. Part II will analyze the most notable provisions of FAPA which have given effect to the legislature’s intent in passing FAPA. Finally, Part III will examine the constitutionality of retroactive legislation and review the validity of arguments surrounding FAPA’s retroactivit

One Person, Endless Data: Prohibiting Personal Political Viewpoint Data Processing to Combat Voter Suppression

(Excerpt) Polarization in American politics and elections continues to rise, due in no small part to advancing digital marketing technologies co-opted by political actors. In 2016, Cambridge Analytica, a political consulting firm, spearheaded right-wing populist campaigns to political victory in the United States and United Kingdom. The firm reconfigured commercial data processing methods to process personal political viewpoint data (“PPVD”) and perform “psychological manipulation.” While the firm has since dissolved, such practices are still used to manipulate American elections. The European Union (“EU”), also in 2016, enacted the General Data Protection Regulation (“GDPR”). As a comprehensive data privacy reform, GDPR, in part, prohibited PPVD processing. In so doing, GDPR proscribed the techniques Cambridge Analytica used to lead the Brexit movement and Donald Trump to electoral victories. Permitting political campaigns to process PPVD allows them to manipulate voters and suppress turnout in elections. GDPR is a comprehensive defense against a novel threat to the principle of democratic self-government. American data privacy regulations are virtually nonexistent. The EU, unlike the United States, accounted for PPVD processing in its comprehensive data privacy reform package with a specific prohibition. As the world’s largest economy, the United States must also specifically prohibit PPVD processing to combat increasingly effective methods of voter manipulation and suppression. GDPR offers the terms of such a prohibition. To repair the damaged integrity in their elections, the United States must prohibit PPVD processing to combat increasingly effective methods of voter manipulation and suppression. Luckily, GDPR demonstrates a path forward. With minimal modification, Congress can adopt GDPR’s PPVD processing prohibition to protect voter data. This Note first examines contemporary data processing techniques and how those techniques—including microtargeting, the premier data processing methodology—are used to manipulate voters. Later, this Note highlights the perceived efficacy and public opinion surrounding those practices. Further comment is made on the anachronistic data privacy landscape in the United States. Then, this Note suggests adoption of the most relevant provisions of GDPR necessary to protect self-determination in American elections. This Note concludes by reiterating the import of personal political data and underscoring the exigence of the recommended prohibitions

A Rendezvous in Outer Space Law: The Challenge of Establishing Binding Regulations for Dual-Use Capabilities

(Excerpt) When the Soviet Union launched Sputnik in 1957, it was not only a significant leap forward in the Space Race with the United States, but also the catalyst for a series of international treaties that would serve as the foundations of outer space law. In the last decade, the world has seen similar technological leaps in the commercial sector. Elon Musk’s SpaceX has launched spacecraft with all civilian crews while Jeff Bezos and Richard Branson aim to expand the market for commercial space flights. Lockheed Martin is one of many companies looking to offer commercial services for maintaining satellites in-orbit. The commercial industry is on the verge of applying decades of research and development, but the law has not kept pace with such advancements. The technological leaps in the commercial sector are accompanied by an increase in spacecraft. Thousands of satellites, supplied by governments, militaries, and commercial companies, now orbit the Earth in the low earth orbit (“LEO”) and geosynchronous orbit (“GEO”). LEO is located up to 1,200 miles above Earth and primarily used for communications and imaging satellites. In GEO, a spacecraft’s orbital speed matches the Earth’s rotation, giving it persistent coverage over a single area. GEO is therefore primarily used for telecommunications and Earth observation. While governments and militaries now share outer space with the civilian sector, for countries like the United States, outer space is still a strategic asset. The United States made clear that protecting its outer space assets was a priority when it created the U.S. Space Force in 2019. Space Force was established under the Department of Defense (“DoD”) to protect and defend U.S. interests in space, but it mostly consolidated DoD space operations that had been in place since the early days of space exploration and race to the Moon. International treaties satisfied the legal requirements of the early space era because only the United States and the Soviet Union were capable of launching and operating spacecraft. Since then, there has been a significant increase in the number of space-faring and space-launching states. Space-faring states are those that have satellites; space-launching states are those that are capable of launching rockets with payloads. There are over seventy space-faring nations today but less than twenty space-launching states. Russia and the United States are still two of the major space-launching states, alongside China, but the current political landscape is different than it was during the Moon race. The United States is reticent to enter into new treaties, and Russia is actively withdrawing from existing arms treaties. China and Russia proposed the Draft Treaty on the Prevention of the Placement of Weapons in Outer Space and of the Threat of Use of Force Against Outer Space Objects (“PPWT”) to the United Nations (“UN”), but it has not progressed beyond a proposal nor does it have United States support. The stalled PPWT is an example of the current difficulty in achieving a new international space treaty, particularly one that presents national security issues

Regulatory Personhood: The Elixir For Redundancy Between the SEC and the PCAOB

(Excerpt) This Article analyzes enforcement activity against public company auditors during the agencies’ coexistence for the purpose of unmasking the alleged villainous duplication, budgetary waste, and agency in-fighting that was purportedly created by Congress when it endowed the PCAOB with enforcement powers already existing in the SEC’s arsenal. The Article examines enforcement cases brought by the SEC and the PCAOB against accounting firms and accountants associated with such firms that relate to poor performance in conducting public company audits during the period in which both agencies were in existence. Such research bears upon the effectiveness of the current system of auditor oversight and informs future efforts to clone this regulatory structure in other areas of securities regulation. Regulatory overlap has, in particular instances, led to deleterious effects. For example, the Department of Justice and the Federal Trade Commission have publicly clashed in the area of antitrust law enforcement. This Article finds no evidence of ineffective duplication of enforcement efforts that would be symptomatic of in-fighting between the SEC and the PCAOB. In fact, it identifies a synergistic allocation of disciplinary activity regarding regulated auditors. This Article asserts this relationship works well because the SEC has a widely recognized proprietary interest in particular enforcement cases, described herein as regulatory personhood, that endows it with a right to exclude its audit co-regulator from such cases. Regulatory personhood nullifies competitiveness and political agenda promotion that would otherwise exist as an output of corporate action theories. This Article employs property law theory as a legal implement to allocate shared enforcement authority effectively between agencies. This Article proceeds in five parts. Part I explores the allocation of regulatory responsibility for policing auditors of public companies, both before and after the passage of the Sarbanes-Oxley Act of 2002. Part II analyzes SEC and PCAOB enforcement activity with respect to public company audit performance during their co-existence. It identifies a system of complementary, not duplicative, enforcement pursuits. Part III discusses legal theory relating to the effective exercise of enforcement authority, and the implications of overlapping jurisdiction. Part IV identifies regulatory personhood as a component of oversight that counteracts the potentially deleterious effects of shared regulatory responsibility between the Board and the SEC. Part V warns that regulatory personhood promotes efficiency in enforcement activity, but produces adverse collateral effects that impact other aspects of auditor oversight

The Blockbuster Amendment to CPLR 2106 Permitting Any Person to Submit an Affirmation in Lieu of an Affidavit

(Excerpt) Traditionally, the affidavit has been the foremost source of proof on motions in New York State courts. Effective January 1, 2024, New York Civil Practice Law and Rules (“CPLR”) 2106 was substantially amended to allow any person to submit an affirmation in lieu of an affidavit, “with the same force and effect.” This is the most significant change to the CPLR in the twenty-first century and will impact many areas of civil procedure. As those who have already grappled with the amendment to CPLR 2106 know, there are now numerous issues relating to the legislation that will need to be addressed by the courts. This is due largely to the fact that the legislature chose not to amend any of the other sixty-two provisions in the CPLR that reference an “affidavit.” Given that the current composition of New York State’s representative bodies is not sufficiently concerned with real procedural reform, we cannot expect any responsible legislative action to be taken to remedy the problem. Therefore, application of the statute in numerous contexts will be left largely to the courts, after lawyers attempt to persuade them with their proposed interpretations. This Article attempts to provide courts and attorneys with an analysis of the new CPLR 2106 and its interplay with several other provisions in the CPLR. The piece examines some early caselaw from the federal and state trial courts in New York, and several appellate division decisions interpreting the statute. Our focus is on the issues that judges and lawyers will most likely confront in applying and using the statute, and there are many. The examination is well worth the effort, as there is an abundance of cases in which a party’s rights have been lost, jeopardized, or compromised because of a defective affidavit or affirmation. The piece also makes recommendations regarding the legislative proces