Neuroscience and the Free Exercise of Religion

Recent developments in neuroscience that purport to reduce religious experience to specific parts of the brain will not diminish the fundamental cultural or legal standing of religion. William James debunked this possibility in The Varieties of Religious Experience (1902) when he noted that “the organic causation of a religious state of mind” no more refutes religion than the argument that scientific theories are so caused refutes science. But there will be incremental legal change in areas like civil commitment where judges must sometimes distinguish between mental disorder and religious belief. The paradox is that the ecstatic religious experience of unorthodox individuals will fare less well in the courts than the beliefs of conventional groups, which is precisely the opposite of James’ view of authentic religious life

The Book of Job and the Role of Uncertainty in Religion and Law

The Book of Job depicts the radical uncertainty that results when people try to comprehend God. Job has had an extraordinary influence on philosophy and literature, and its message on the limits of human knowledge has even been echoed in the words of great scientists. Surprisingly, however, it has had little influence on the rhetoric or approach of lawyers and judges. The legal profession, which confronts uncertain outcomes daily, has reduced uncertainty to a mundane calculation of odds, while ignoring the more fundamental idea of the unknown because that idea would paralyze legal work

Religious Contributions to the Bioethics Debate: Utilizing Legal Rights While Avoiding Scientific Temptations

This Article explores the authors views on the place of religious debate concerning scientific issues. It outlines the author\u27s concerns with religion becoming overshadowed by science, even within relgious communities, and his ideas on how religion may be brought to the forefront

MRIs and the Perception of Risk

The most important safety decision concerning MRIs was to change the name of the procedure. In the late 1970s, the procedure known as nuclear magnetic resonance (NMR) became magnetic resonance imaging (MRI) because of the negative connotations the word “nuclear” invited. The change was understandable since MRIs do not expose patients to dangerous radiation: “nuclear” was in the original name because basic research on the atomic nucleus led to the development of MRIs. The main cost of the name change was to obscure the important link between basic research and useful medical technologies. In recent years, however, MRIs, a generally safe procedure, have been bothered by a new problem. MRIs, which are used in research as well as medical settings, often result in incidental findings of medical conditions that may be clinically significant. Automatic notification of subjects, however, is not always the sensible route, since incidental findings that turn out to be clinically irrelevant can lead not only to fear and anxiety but to needless and dangerous interventions. Sound ethical policies on incidental findings need to be developed. It is ironic that this process will involve the weighing of patient fears that may not be shared by experts; the original name change was motivated by much the same situation

Antonin Scalia, Baruch Spinoza, and the Relationship Between Church and State

I begin with an outline of Spinoza\u27s philosophy on church and state, followed by a demonstration that Scalia is headed in the same direction. I conclude by considering how Spinoza and Scalia might react to recent litigation in South Dakota involving an excommunication from a close-knit religious community, the Hutterite Church

Albert Einstein, Esq.

Albert Einstein’s 1905 paper setting forth the special theory of relativity is one of the most famous scientific articles ever written. Peter Galison’s influential book, Einstein’s Clocks, Poincaré’s Maps: Empires of Time (2003), demonstrates that Einstein’s paper was fundamentally shaped by his work as a patent examiner by showing that arguments previously seen as abstract thought experiments were instead derived from Einstein’s work on patent applications for devices that coordinate clocks. Moving beyond Galison’s insights, we can see portions of Einstein’s paper as reflecting the quasi-judicial role of a patent examiner. Like trial judges, patent examiners must apply settled legal principles to new factual settings. A close look at the structure of the 1905 paper shows a similar effort to apply settled physical principles to an open problem. Einstein’s own writings show how he appreciated the analysis of “concrete cases” found in legal materials

Technology Unbound: Will Funded Libertarianism Dominate the Future?

The panel decision in Abigail Alliance, which found a constitutional right to use certain medicines that have not received Food and Drug Administration approval, may not survive further review, but it already stands as an important signpost on the road to further deregulation of the drug market. This trend mirrors the evolution of the in vitro fertilization (IVF) industry which is remarkably unregulated although it raises numerous ethical and consumer protection issues. These developments share an obvious libertarian underpinning, but in both cases it is an odd sort of libertarianism, because proponents of unmediated access to drugs and IVF also favor broad government funding of research in those areas, a type of state intervention that departs dramatically from libertarian norms. This sort of funded libertarianism is an unstable policy approach that is unlikely to survive

Beyond Coercion: Justice Kennedy\u27s Aversion to Animus

In evaluating the constitutionality of religious displays, Justice Kennedy adheres to the coercion test. A crèche on the courthouse steps is acceptable because it does not coerce anyone to support or participate in a religious exercise. He rejects the endorsement test, which asks whether the display makes reasonable nonadherents feel like outsiders, finding it to be “flawed in its fundamentals and unworkable in practice.” Yet in the free exercise context, Kennedy has focused on whether a community shows hostility to minority faiths, and his opinions in Romer and Lawrence stress that legislatures acted unconstitutionally in showing animus to gays. Suppose a passive religious display conveyed a message of animus. Imagine, for example, a plaque on the courthouse wall that quoted Leviticus: “Thou shalt not lie with mankind, as with womankind: it is abomination.” I believe Kennedy would strike down the display on the ground that it makes a reasonable gay observer feel like a pariah in the community, an approach similar to the endorsement test

Enhancing the Senses: How Technological Advances Shape Our View of the Law

This memorial lecture was given at West Virginia University, which houses, among other relevant programs, the Biometric Knowledge Center. The lecture surveys the application of a variety of legal topics to biometrics. Covered areas include basic research funding choices, freedom of speech, association and religion, search and seizure, and informational privacy