Religious Freedom as Freedom

In recent decades, the exercise of religious freedom is increasingly associated with oppression. This is not only due to the disagreement between religions and some governments concerning sexual expression matters—contraception, abortion, same-sex relations, and transgender identity—but is also due to diverging convictions about the substance and sources of freedom. This Article will examine a current and highly visible set of convictions about the contents of human freedom, which together suggest that a thriving religious witness threatens freedom itself. These convictions often surface in the context of laws touching upon sexual expression. It will then contrast these convictions with those found in earlier and largely non-sexual-expression law, according to which religious witness enhances human freedom. Finally, it will offer four observations about these contrasting notions of freedom

Regulatory Influence in the Financial Markets Revisited

Historically, the financial markets of the United States and their corresponding regulatory scheme wielded unique influence throughout the globe. But this influence is waning, due largely to the centralization of financial services rulemaking within the European Union and the growth of global emerging markets. It is thus an important time to consider the circumstances under which a jurisdiction may assume and exercise the global regulatory influence traditionally wielded by the U.S. regime. This Article develops a new framework to specifically address regulatory influence within global financial regulation and financial markets more broadly, looking beyond market size to establish a more complex understanding of the factors that influence global regulatory decisions within this area. This Article begins from the premise that existing theories of regulatory influence and regulatory competition, such as Anu Bradford’s “Brussels Effect,” are applicable to financial markets. This Article then sets forth novel factors regarding the jurisdiction adopting a given regulatory position that must also be considered. This Article presents three illustrative case studies where the EU’s regulatory agenda has intersected with global financial regulation: (i) limitations on payment for the use of soft-dollar research; (ii) supervision of financial benchmarks following recent market manipulation scandals; and (iii) environmental, social, and governance (ESG) disclosures for financial products. These case studies introduce new principles for evaluating regulatory influence that have been lacking in the existing legal literature and that are of particular importance given the continuing growth of emerging markets worldwide

Wither, Religious Liberty

During the oft-deemed Constitutional Revolution of 1937, the U.S. Supreme Court effected a significant sea-change in its substantive due process liberty analysis. In West Coast Hotel v. Parrish, the Court held that the Due Process Clause’s liberty provision does not protect absolute freedom of contract, signaling the demise of the Lochner era. Almost a century later, the current Supreme Court’s supermajority bloc is now infamous for its own seismic shift in liberty analysis. This Court’s incontrovertible Constitutional Revolution of 2022 was not limited to only substantive due process, which the Court shifted with its decision in Dobbs v. Jackson Women’s Health Organization. It also redefined religious liberty in Kennedy v. Bremerton School District through an erroneous deviation from stare decisis and seventy-five years of Madisonian-originalist school case law. This Article analyzes how the current Court has degraded constitutional liberty in public schools by interpreting the Establishment Clause through a constricted historical lens aligned with the legislative prayer exception interpretive modality. The net result of this degradation has been a meaningful and significant infliction of harm on the Constitution, religion, and the American people. This jurisprudential retrograde slide into a narrow historicism in contravention of the core meaning and purposes of the First Amendment is swiftly becoming the watermark of the current Court. The interpretive misstep of Kennedy is gaining momentum, too, being implemented through anti-Madisonian, unconstitutional religious exercises in public schools, like public school chaplains and state-led prayer. Consequently, America should and must take alarm at this substantial jurisprudential shift and its repercussions. Without such alarm, the ultimate legacy of the Roberts Court will be the withering, if not outright elimination, of religious liberty in public schools

Purdue’s Side Effects: Using Due Process to Realign Mass Tort Bankruptcies

In Harrington v. Purdue Pharma, the United States Supreme Court held that victims of the opioid crisis could not be forced to release their independent claims against the Sacklers, who owned and controlled Purdue, without the victims’ consent. Such releases had become a controversial mainstay of mass tort bankruptcy filings. Yet Purdue was decided on narrow, textualist grounds, leaving as a side effect many seemingly disparate and difficult questions unanswered. This Article argues that Purdue and its open issues should be analyzed through a broader due process lens in tension with some aspects of current bankruptcy practice but consistent with the Court’s recent bankruptcy jurisprudence. Although the Court now requires consent to settle claims against third parties, it expressly declined to define consent. Similarly, it explicitly refused to determine whether a plan that fully satisfies claims against nondebtors can be approved over creditor objections. After analyzing the complexities of these issues, this Article explores two more questions, entirely ignored by the Court, that are essential to understanding future mass tort bankruptcies. First, it investigates when and how governments, which are often the largest creditors in a mass tort bankruptcy, should consent to releases in favor of third parties or bind inferior levels of government to settlements they make. Second, it analyzes how debtors, governments, and third parties use and abuse antilitigation injunctions—a mainstay of mass tort bankruptcy practice. Collectively, these are critical issues in mass tort bankruptcies, both pending and on the horizon. This Article argues that, despite the lack of direct guidance from the Supreme Court, these disparate questions can be unified through the Court’s recent bankruptcy jurisprudence emphasizing the importance of due process. Bankruptcy may offer exceptional powers, but these powers must be tempered by reforms that respect a litigant’s ultimate control of its claim. These reforms include more robust statements of consent, limitations on injunctions (and their circumvention), and guardrails around case-determinative settlements. If Purdue is part of a broader trend of realigning bankruptcy law with other areas of litigation, due process provides the cipher to resolve the problems that will inevitably arise in future mass tort bankruptcies

Artificial Intelligence, Autonomous Creation, and the Future Path of Copyright Law

Most literature at the intersection of copyright and artificial intelligence (AI) has focused primarily on what copyright law is or ought to be. Frequently overlooked is the question of what copyright law will be in the AI space. Understanding this question is crucial because the path of copyright law chosen by the United States will have a major impact on the country’s economic and technological future. This Article begins by scrutinizing two lines of arguments that have been advanced to deny copyright protection to AI-generated works: constitutional and incentivebased. The Article then discusses a third line of arguments— harmonization-based arguments—and identifies select instances in which Congress matched the protection offered by other jurisdictions or declined to do so. This Article further shows that global copyright law developments have slowly diverged in the AI space. In view of these growing divergences, U.S. legislators and policymakers are now confronted with a key policy choice at the intersection of copyright and AI: should the United States retain existing approaches, follow other jurisdictions, or work with these jurisdictions to develop harmonized AI-related international copyright standards? To inform the future debate on copyright and AI, the second half of this Article highlights the different areas in which substantial copyright law and policy reform may emerge in the AI space. It further discusses four options the United States can take to shape the future path of copyright law: (1) international treaty negotiations; (2) soft law instruments; (3) a global multi-stakeholder dialogue; and (4) choice-of-law principles

Clark Memorandum: Spring 2025

Primary and Professional Identity Never Only Two Sides In Defense of Zion and Her People The Pursuit of Happinesshttps://digitalcommons.law.byu.edu/clarkmemorandum/1076/thumbnail.jp