Valuation Procedure for Condemnation: A Fifty State Survey

The Fifth Amendment requires statutorily authorized condemnors to provide just compensation to landowners for all takings. The procedural method used by states to determine just compensation varies widely among states and is often separate from the more standard procedures existing in traditional civil litigation. Regardless of their method, all fifty states and the District of Columbia each have their own unique procedure for determining just compensation. This Note distinctly classifies the procedural schemes currently used by states to initially value just compensation of condemned property into three general categories: (1) schemes that rely on commissioners to determine just compensation, (2) schemes that empower judges to valuate property, and (3) other schemes that are unique to only a few states. This Note also compares and contrasts the efficiency and justness of methods used in different states to initially determine what constitutes just compensation. Perhaps most importantly, this Note provides a series of graphics in the Appendix that will help both academics and practitioners understand state-to-state differences in procedurally determining just compensation

Agreeing to Disagree: Abortion Jurisprudence in Jewish and Islamic Law

This Article challenges the prevailing perception that religious people and religious legal traditions are anti-abortion. While this may be true within certain conservative Christian perspectives, this perception is an inaccurate representation of Jewish and Muslim Americans and their respective legal traditions. Both the Jewish and Islamic legal traditions offer a range of nuanced positions on abortion. Furthermore, diverse opinions of Jewish and Islamic abortion jurisprudence inform a variety of topics salient to the current legal debate in the United States. This range of opinions includes strict limitations on abortion, circumstantial legality, and general permissibility. Scholars from both traditions engaged in lengthy debates (spanning millennia) on the topic, developing rich legal frameworks regarding abortion. While they disagreed on the specific circumstances and timing for permissible abortions, they acknowledged the validity of differing viewpoints. Unlike the current American legal framework wherein the legality of abortion is dependent on geographic location, Jewish and Islamic scholars created legal frameworks that allowed for individuals to choose among a range of authoritative opinions. Namely, because Jewish and Muslim scholars did not reach any unanimity of opinion on the legality of abortion, they acknowledged that on questions related to the protection of potential life no single opinion controls. Based on this approach, Jewish and Islamic law provide for a wide range of opinion, all held to be legitimate and authoritative, allowing for choice among the range of recognized legal positions. It is noteworthy that Jewish and Islamic jurisprudence have distinct perspectives on personhood and life as compared to the U.S. Supreme Court’s opinion in Dobbs v. Jackson Women\u27s Health Organization. For instance, within the first forty days after conception Jewish law refers to the embryo as “mere water,” and Islamic law refers to it as a “mixed drop,” both designations indicating that the embryo falls short of legal human life. This Article is the first to put Jewish and Islamic abortion jurisprudence into conversation, highlighting their remarkable similarities in the permissibility of pregnancy termination and requirements for legal human life. The Article also aims to provide guidance for Jewish and Muslim Americans bringing First Amendment abortion claims. More generally, to the extent that abortion rights discourse is deeply influenced by religion in the United States, accounting for Jewish and Islamic traditions begins to provide a more inclusive accounting beyond the hegemony of conservative Christianity

Two Concepts of Judicial Deference to Religious Claims

Religious exemptions from general laws are everywhere. The U.S. Supreme Court is expanding its exemption doctrine, systemically preferring religious needs over conflicting considerations. This ignites an ongoing debate between those celebrating religious liberties and those fearing their societal costs. Assessing this judicial trend, as this Article highlights, requires noticing how it is facilitated by a broad deferential approach to religious claims, refraining from evaluating their content. This Article argues that this broad expression of judicial deference is analytically flawed and normatively implausible. The problem lies in the failure to distinguish between two types of religious claims when deferring to them: claims based on religious conscience and claims protecting communal autonomy. The normative implications of this distinction for judicial deference are currently unrecognized. By examining two representative exemption cases, this Article argues that each type of religious claim triggers a distinct concept of deference. Conscience-based claims evoke a strong argument for secondary deference: a constraint from inquiring into religious content within the process of evaluating the primary conscientious claim. This is because conscience is a subjective, personal matter, whose evaluation in terms of content is constitutionally problematic. By contrast, community-based claims protect religious communal autonomy, not a direct conscientious conviction. Thus, they do not evoke this secondary, procedural deference. Rather, these claims call for deference as the manifestation of the religious right. That is, the Court protects the right to autonomy by expressing deference to religion. After establishing this analytical distinction, this Article discusses its normative and doctrinal implications. It demonstrates the detrimental consequences of its conflation by the Court, especially in granting religious institutions foreclosing exemptions from anti-discrimination labor law. Finally, this Article proposes a doctrinal alternative: First, courts should recognize the main constitutional value underlying the claim and set the deference baseline. Second, courts should consider how other constitutional values, if any, influence the claim. Despite their analytical distinction, conscience and community considerations are commonly intertwined in practice. Accordingly, this Article’s doctrinal alternative consists of a two-phased approach, sensitive to these possible reciprocal influences

The Social Psychology of Religious Liberty Depolarization

This Article examines the U.S. Supreme Court\u27s approach to cases involving religious liberty and LGBTQ+ rights through the lens of social psychology. As Americans increasingly sort into opposing “mega- identities” defined by political, racial, and religious traits, religious liberty has become a deeply polarized issue, with traditional Christians and LGBTQ+ advocates often positioned as adversaries in a zero-sum conflict. Against this backdrop, the Article argues that the Roberts Court has employed social psychological techniques—specifically “aporia” (acknowledging complexity) and “affirmation” (validating diverse viewpoints)—to de-escalate this cultural tension. By analyzing key decisions in Masterpiece Cakeshop v. Colorado Civil Rights Commission, Fulton v. City of Philadelphia, and 303 Creative LLC v. Elenis, the Article demonstrates how the Court\u27s opinions have created “safe harbors” for religious dissenters while simultaneously affirming LGBTQ+ rights. Drawing on empirical studies of the Court\u27s impact on cultural intermediaries, business behaviors, and litigation patterns, the Article reveals how judicial rhetorical strategies can foster a “live-and- let-live” approach to contentious cultural issues. While acknowledging the limitations of the Court\u27s depolarizing influence amid broader social division, the Article concludes that the Court\u27s nuanced engagement with religious liberty represents a meaningful contribution to American pluralism

“Absolute and Arbitrary”: How the Supreme Court’s Certiorari Power Violates the Nondelegation Doctrine

The Exceptions Clause of Article III of the Constitution is clear that “Congress” “shall make” the rules prescribing the Court’s “appellate jurisdiction.” And so Congress did for almost 150 years. But in the twentieth century, Congress delegated its power to the Supreme Court in the form of—as Chief Justice Taft demanded—”absolute and arbitrary” discretion to pick its appellate cases. Today, under the resulting certiorari regime, the Court enjoys that unbridled discretion in selecting its cases. Because Congress delegated its power to the Court without articulating “an intelligible principle,” certiorari jurisdiction violates the nondelegation doctrine and is unconstitutional. This Article is the first to advance this bold and novel claim. In addition to its constitutional argument, the Article sets forth a roadmap for litigants to challenge the certiorari process. This Article first provides an overview of numerous facets of the doctrine as it has developed to demonstrate that, whatever the mode of analysis, the doctrine applies regardless of the branch to which Congress is delegating. It then examines the Exceptions Clause, which reserves exclusively to Congress the power to regulate the Supreme Court’s appellate jurisdiction. Because Congress has this power, it has a duty to articulate an intelligible principle in delegating away that power—yet it plainly did not. In addition to calling attention to an important, continuing constitutional violation, this Article also aims to add to the current field of scholarship, which focuses on delegations to the Executive Branch. This Article aims to reinvigorate the discussion surrounding the nondelegation doctrine, including the discussion of delegations among other branches—in both directions

Them’s Fightin’ Words—Maybe: Testing the Application and Boundaries of the “Fighting Words” Doctrine Using a Randomized Survey Experiment

Advanced note to readers: The survey experiment in this Article depicts acts of verbal violence, including the use of raceand gender-based epithets. Some of the relevant caselaw also includes offensive or harmful language. As one of only a handful of exceptions to the First Amendment’s bar on laws proscribing speech, “fighting words” are defined as “those personally abusive epithets which, when addressed to the ordinary citizen, are, as a matter of common knowledge, inherently likely to provoke violent reaction.”1 It is unclear, however, how this relatively old doctrine applies to contemporary speech. Additionally, the standard is itself potentially problematic in application. Strictly interpreted, the standard appears to make words regulable and metes out punishment based on the perceived reaction of the victim (or onlookers) rather than the behavior of the wrongdoer. Consequently, we join others in arguing that the doctrine may fail to protect the interests of women, racial/ethnic minorities, or other groups when underlying assumptions based on victims’ characteristics form the basis of a factfinder’s determination as to whether a violent response is “likely.” To explore these concerns, we conducted a qualitative survey of thirty recent cases that explored the fighting words standard in state courts and identified any factors—other than the content of the “fighting words” themselves—that courts consider when making a fighting words determination. Then, to gauge how the characteristics of the individuals involved in an altercation might impact a fighting words analysis, we conducted a randomized survey experiment incorporating these factors into vignettes to explore when the “common knowledge” of the “ordinary citizen”—or at least the consensus of the 705 survey respondents—suggests something is likely to provoke a violent reaction. Our results indicate that the racial and gender composition of the parties involved in an altercation do sometimes have statistically significant effects on whether an altercation is perceived as likely to provoke violence, at least within the limited confines of the survey. The survey results also indicate—although not always in a statistically significant manner—that there are observable differences in whether a violent reaction is predicted based on the nature of the epithet used, with racial epithets being perceived as particularly impactful, especially against racial minorities