The Method and Role of Comparative Law

Part II will lay out the methodology of comparative law. My proposal for comparative methodology consists of these steps: Step 1 calls for acquiring the skills of a comparativist. These skills require immersion in the culture under review, linguistic knowledge, and the application of neutral, objective evaluative skills. Step 2 requires the application of these comparative skills to evaluate the external law, which consists of the law as written or stated. Here we must do a close assessment of the similarities and differences of the laws of different countries under review. Step 3 involves applying that same methodology to the internal law, a level of law that lies beneath external law yet has important influences on the formation of law. Finally, in Step 4 the results of comparative investigation are assembled in order to determine what we can learn from the foreign legal system and how that insight might reflect on our own legal system. Part III will then turn to describing and outlining the mission of comparative law. Here the focus will be on employing comparative law methodology to help gain insight into the laws of non- Western countries and solve pressing public policy questions

Religion in the Classroom in Germany and the United States

In this Article, Professor Eberle evaluates the relationship of religion in the classroom in Germany and the United States, as formulated by the countries\u27 highest courts, the German Constitutional Court and the United States Supreme Court Pursuant to the German model of church-state cooperation, public finds are channeled to religious organizations, such as, for example, using the machinery of the state to rise and disperse tax monies to religious organizations. Religious groups may then use the tax monies collected to support religious education in the public schools. However, pursuant to guidelines announced by the German Constitutional Court, teaching of religious tenets can only occur in religion class and ample opportunity must be given to students to choose or not choose the type of religious instruction they desire. Apart from religion class, dominant Christianity is to be treated only as a part of the historical tradition of western civilization and not as a missionary exercise; no religious indoctrination may occur on public school premises outside of religion class. By contrast the language and Enlightenment background of the American Establishment Clause reasonably suggests a more separationist approach to church-state relations. It is fair to say that a separationist approach still largely applies with respect to public schools. However, the formal neutrality advanced by the Rehnquist Court reconceives church-state relations along distinctly more accommodationist grounds concerning private, parochial schools. Employing a core doctrine of (1) neutrality and (2) private, genuine choice--principles that resonate partly with German doctrine-substantial public aid has been dispensed to private, religious schools, as we will examine. In this way, religious institutions can be accommodated in society on the same basis as secular institutions. We can see that recent American Establishment Clause doctrine has unfolded in a way somewhat characteristic of German church-state relations in respect of public support for religious teaching in schools. For comparative purposes, it is striking that American doctrine has so evolved notwithstanding a much different historical understanding and constitutional language

Hate Speech, Offensive Speech, and Public Discourse in America

In this article, Professor Eberle discusses several limitations on governmental power to regulate public discourse. After examining the United States Supreme Court decisions of R.A.V. v. City of St. Paula nd Wisconsin v. Mitchell, Professor Eberle concludes that government should refrain from regulating speech itself. Rather, any restrictions should focus strictly on the problematic conduct underlying the speech which justifies regulation. Professor Eberle also concludes that the Court has implicitly recognized two distinct subcategories of content discrimination and viewpoint discrimination. Both subcategories are presumptively unconstitutional and nominally subject to conventional strict scrutiny. The Court, however, finds viewpoint discrimination more dangerous to public discourse. Therefore, the Court has in practice applied a heightened review to instances of viewpoint discrimination under the guise of conventional strict scrutiny. This heightened scrutiny explains decisions, like R.A.V., in which the Court invalidated seemingly constitutional statutes regulating public discours