The Establishment Clause is home to both procedural and substantive disorder. Particularly when evaluating religious speech by the government, the Supreme Court has applied a number of distinct tests, with varying degrees of strictness. There has never been an overarching principle for determining which test would appear at which time; commentators, and occasionally the Justices themselves, have suspected that desired results drove the choice of tests. At the same time, the Court has articulated a series of requirements necessary for a plaintiff to have standing to challenge government action, only to ignore them in government religious speech cases. The resulting lack of clarity leaves lower courts to their own devices in endeavoring to calm increasingly intense struggles. This article sets out a theory that altering one of these problems might correct the other. Analogizing to the Treaty of Westphalia’s temporal limit on the airing of grievances, the Supreme Court could replace the current standing chaos with a limit to claims against current government activity. Such a rule would foreclose the ability of pro-religion forces to new domination of the public square, but would also prevent anti-religion forces from removing the vestiges of past government activity that are central to the American experience. Current doctrine ends with many of the same results, but doing so under the standing doctrine would remove the camouflage of alternative substantive tests. Simultaneously, it would decrease the incentive of participants in the national political struggle over religion to ever more hostile moves. The clarity this doctrinal shift would provide could help improve both religious freedom and peace in the national dialogue.
设立条款是程序和实体混乱的根源。特别是在评估政府的宗教言论时，最高法院采用了一些不同的标准，严格程度各不相同。从来没有一个总体原则来决定哪个测试将在哪个时间出现;评论员们，偶尔还有法官们自己，都怀疑是理想的结果驱动了考试的选择。与此同时，最高法院明确规定了原告有资格挑战政府行为的一系列必要条件，但在政府的宗教言论案件中却忽略了这些条件。由于缺乏明确性，下级法院只能依靠自己的手段来努力平息日益激烈的斗争。本文提出了一个理论，即改变其中一个问题可能会纠正另一个问题。与《威斯特伐利亚条约》(Treaty of Westphalia)对表达不满的时间限制类似，最高法院可以用限制对当前政府活动的索赔来取代目前的混乱局面。这样的规定将阻止亲宗教势力对公共领域的新统治，但也将阻止反宗教势力清除过去政府活动的痕迹，而这些痕迹对美国的经历至关重要。目前的原则以许多相同的结果结束，但在现行原则下这样做将消除替代实质性测试的伪装。同时，这也会减少国家宗教政治斗争参与者采取敌对行动的动机。这种教义转变所带来的明确性将有助于改善宗教自由和全国对话中的和平。
{"title":"Standing on Holy Ground: How Rethinking Justiciability Might Bring Peace to the Establishment Clause","authors":"John M. Bickers","doi":"10.2139/ssrn.2012756","DOIUrl":"https://doi.org/10.2139/ssrn.2012756","url":null,"abstract":"The Establishment Clause is home to both procedural and substantive disorder. Particularly when evaluating religious speech by the government, the Supreme Court has applied a number of distinct tests, with varying degrees of strictness. There has never been an overarching principle for determining which test would appear at which time; commentators, and occasionally the Justices themselves, have suspected that desired results drove the choice of tests. At the same time, the Court has articulated a series of requirements necessary for a plaintiff to have standing to challenge government action, only to ignore them in government religious speech cases. The resulting lack of clarity leaves lower courts to their own devices in endeavoring to calm increasingly intense struggles. This article sets out a theory that altering one of these problems might correct the other. Analogizing to the Treaty of Westphalia’s temporal limit on the airing of grievances, the Supreme Court could replace the current standing chaos with a limit to claims against current government activity. Such a rule would foreclose the ability of pro-religion forces to new domination of the public square, but would also prevent anti-religion forces from removing the vestiges of past government activity that are central to the American experience. Current doctrine ends with many of the same results, but doing so under the standing doctrine would remove the camouflage of alternative substantive tests. Simultaneously, it would decrease the incentive of participants in the national political struggle over religion to ever more hostile moves. The clarity this doctrinal shift would provide could help improve both religious freedom and peace in the national dialogue.","PeriodicalId":258683,"journal":{"name":"The Cleveland State Law Review","volume":"7 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2012-02-28","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"130534965","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
In 2007 and 2009, the U.S. Supreme Court altered the requirements for adequate statement of a legal claim in the filing of lawsuits. Unwittingly, it also changed the way lower courts evaluated their own grounds for jurisdiction. The error propagates rapidly and will be difficult to eradicate without further guidance from the Supreme Court.
{"title":"Ripple Effects: The Unintended Change to Jurisdictional Pleading Standards after Iqbal","authors":"von der Heydt, E. James","doi":"10.2139/SSRN.1989432","DOIUrl":"https://doi.org/10.2139/SSRN.1989432","url":null,"abstract":"In 2007 and 2009, the U.S. Supreme Court altered the requirements for adequate statement of a legal claim in the filing of lawsuits. Unwittingly, it also changed the way lower courts evaluated their own grounds for jurisdiction. The error propagates rapidly and will be difficult to eradicate without further guidance from the Supreme Court.","PeriodicalId":258683,"journal":{"name":"The Cleveland State Law Review","volume":"31 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2012-01-21","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"124731114","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
Recent controversies, such as enactment of an individual mandate to purchase health insurance and the legalization of assisted suicide in Washington and Montana, have renewed the war over personal autonomy. Debates about the value and limits of personal autonomy also play major roles in the controversies over abortion, same-sex intimacy, and same-sex marriage. On one side of the autonomy war, advocates of unfettered individual freedom assert that by her un-coerced and autonomous choice the individual person determines the value of human goods such as life, health, and marriage.On the other side, proponents of strong government restrictions on personal choice hold that personal autonomy conflicts with personal responsibility. This view is used to support strong government restrictions not only on assisted suicide and marriage, but also on the consumption of drugs, cigarettes, and alcohol; and recently on economic activities, such as the decision whether to purchase health insurance.This article attempts to carve a path between the two sides in this autonomy war. It begins by bringing into dialogue with each other four of the most influential legal philosophers of our day, Joseph Raz, Ronald Dworkin, John Finnis, and Robert George. Each of these four makes bold and instructive claims about the value and limits of personal autonomy. The article then examines several different areas of state law where one might expect a principle of autonomy to be implicated, and articulates six important lessons that one can glean from state law about the relationship between personal autonomy and other human goods.
{"title":"The Mystery of Life in the Laboratory of Democracy: Personal Autonomy in State Law","authors":"A. MacLeod","doi":"10.2139/SSRN.1907453","DOIUrl":"https://doi.org/10.2139/SSRN.1907453","url":null,"abstract":"Recent controversies, such as enactment of an individual mandate to purchase health insurance and the legalization of assisted suicide in Washington and Montana, have renewed the war over personal autonomy. Debates about the value and limits of personal autonomy also play major roles in the controversies over abortion, same-sex intimacy, and same-sex marriage. On one side of the autonomy war, advocates of unfettered individual freedom assert that by her un-coerced and autonomous choice the individual person determines the value of human goods such as life, health, and marriage.On the other side, proponents of strong government restrictions on personal choice hold that personal autonomy conflicts with personal responsibility. This view is used to support strong government restrictions not only on assisted suicide and marriage, but also on the consumption of drugs, cigarettes, and alcohol; and recently on economic activities, such as the decision whether to purchase health insurance.This article attempts to carve a path between the two sides in this autonomy war. It begins by bringing into dialogue with each other four of the most influential legal philosophers of our day, Joseph Raz, Ronald Dworkin, John Finnis, and Robert George. Each of these four makes bold and instructive claims about the value and limits of personal autonomy. The article then examines several different areas of state law where one might expect a principle of autonomy to be implicated, and articulates six important lessons that one can glean from state law about the relationship between personal autonomy and other human goods.","PeriodicalId":258683,"journal":{"name":"The Cleveland State Law Review","volume":"22 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2011-08-09","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"122346044","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
Recently, the idea has prominently been endorsed that the free speech clause does, or at least should, protect speech that is essentially about the speaker--autobiographical speech with no intended social or political implications, as strongly as the free speech clause protects political speech. This Article explores the argument that speech about oneself, with no such political or other social implications, should be treated as of equal free speech value as political speech, and ultimately rejects such an argument. The Article reaches this result mainly by considering and applying the various basic purposes widely thought to underlie special protection for speech in the first place, but also by noting the implications of current Supreme Court case law, as well as the practical risks of even an unintended and indirect constitutional validation of cultural narcissism.
{"title":"The Constitutional Status of Speech About Oneself","authors":"R. G. Eorge, Tom Wolfe","doi":"10.2139/SSRN.2020564","DOIUrl":"https://doi.org/10.2139/SSRN.2020564","url":null,"abstract":"Recently, the idea has prominently been endorsed that the free speech clause does, or at least should, protect speech that is essentially about the speaker--autobiographical speech with no intended social or political implications, as strongly as the free speech clause protects political speech. This Article explores the argument that speech about oneself, with no such political or other social implications, should be treated as of equal free speech value as political speech, and ultimately rejects such an argument. The Article reaches this result mainly by considering and applying the various basic purposes widely thought to underlie special protection for speech in the first place, but also by noting the implications of current Supreme Court case law, as well as the practical risks of even an unintended and indirect constitutional validation of cultural narcissism.","PeriodicalId":258683,"journal":{"name":"The Cleveland State Law Review","volume":"36 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2011-06-09","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"129738633","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
This article looks at the Supreme Court of Ohio's decision in Lovewell v. Physicians Insurance Co. and the variety of issues and unanswered questions the decision presents relating to insurance law. First, it may no longer be assumed that the insurer acts in tandem with the insured when the insurer is defending a suit brought against the covered individual. Secondly, the Lovewell decision seems to be contrary to one of the basic tenets of insurance law – that an insurance contract must be construed liberally in favor of the insured and strictly against the insurer. Third, the decision gives insureds cause to wonder whether a clause allowing them the right to refuse settlement may result in personal liability.
{"title":"Lovewell v. Physicians Insurance Co.: Personal Liability for Prejudgment Interest","authors":"Karin M. Mika","doi":"10.2139/SSRN.1649652","DOIUrl":"https://doi.org/10.2139/SSRN.1649652","url":null,"abstract":"This article looks at the Supreme Court of Ohio's decision in Lovewell v. Physicians Insurance Co. and the variety of issues and unanswered questions the decision presents relating to insurance law. First, it may no longer be assumed that the insurer acts in tandem with the insured when the insurer is defending a suit brought against the covered individual. Secondly, the Lovewell decision seems to be contrary to one of the basic tenets of insurance law – that an insurance contract must be construed liberally in favor of the insured and strictly against the insurer. Third, the decision gives insureds cause to wonder whether a clause allowing them the right to refuse settlement may result in personal liability.","PeriodicalId":258683,"journal":{"name":"The Cleveland State Law Review","volume":"17 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2010-07-27","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"134539125","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
There are few crimes which elicit a response as emotionally charged as those involving an allegation of child sexual abuse. Given the paucity of physical and scientific evidence in many cases and the resulting need to rely almost exclusively on the testimony of a very young child, the cases present unique challenges for judges, prosecutors and criminal defense attorneys. While many scholars have addressed the dangers inherent in questioning children, such as creating false memories and improperly influencing testimony, there has been little exploration of the means employed by courts to evaluate a child’s ability to offer reliable testimony. Many courts make a threshold finding of competence to testify after only a cursory examination that does not adequately test the child’s true capacity to provide credible and factually accurate testimony. This article explores the nature of children’s testimony and the inadequacy of the traditional competency hearing in either testing the child’s ability to distinguish fantasy from reality or in judging his or her understanding of the consequences of testifying truthfully. The article provides suggestions for restructuring the competency hearing to make it a meaningful process by which the judge and jury can determine the young child's capacity to offer reliable testimony.
{"title":"Evaluating Children's Competency to Testify: Developing a Rational Method to Assess a Young Child's Capacity to Offer Reliable Testimony in Cases Alleging Child Sex Abuse","authors":"Laurie Shanks","doi":"10.2139/ssrn.1577228","DOIUrl":"https://doi.org/10.2139/ssrn.1577228","url":null,"abstract":"There are few crimes which elicit a response as emotionally charged as those involving an allegation of child sexual abuse. Given the paucity of physical and scientific evidence in many cases and the resulting need to rely almost exclusively on the testimony of a very young child, the cases present unique challenges for judges, prosecutors and criminal defense attorneys. While many scholars have addressed the dangers inherent in questioning children, such as creating false memories and improperly influencing testimony, there has been little exploration of the means employed by courts to evaluate a child’s ability to offer reliable testimony. Many courts make a threshold finding of competence to testify after only a cursory examination that does not adequately test the child’s true capacity to provide credible and factually accurate testimony. This article explores the nature of children’s testimony and the inadequacy of the traditional competency hearing in either testing the child’s ability to distinguish fantasy from reality or in judging his or her understanding of the consequences of testifying truthfully. The article provides suggestions for restructuring the competency hearing to make it a meaningful process by which the judge and jury can determine the young child's capacity to offer reliable testimony.","PeriodicalId":258683,"journal":{"name":"The Cleveland State Law Review","volume":"28 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2010-03-23","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"122716024","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
This Article is a contribution to a Symposium that focuses on the ideas of Margaret Jane Radin as a point of departure, and particularly on her analyses of propertization and commodification. While Radin focuses on the harms associated with commodification of the person, relying on Hegel's idea of alienation, we argue that objectification, and in particular objectification of various features of the digital environment, may have important system benefits. We present an extended critique of Radin's analysis, basing the critique in part on Gadamer's argument that meaning and application are interrelated and that meaning changes with application. Central to this interplay is the speculative form of analysis that seeks to fix meaning, contrasted with metaphorical thought that seeks to undermine some fixed meanings and create new meanings through interpretation. The result is that speculative and metaphorical forms are conjoined in an interactive process through which new adaptations emerge. Taking this critique an additional step, we use examples from contemporary intellectual property law discourse to demonstrate how an interactive approach, grounded in metaphor, can yield important insights.
{"title":"Metaphor, Objects, and Commodities","authors":"George H. Taylor, M. J. Madison","doi":"10.31228/osf.io/2xa5k","DOIUrl":"https://doi.org/10.31228/osf.io/2xa5k","url":null,"abstract":"This Article is a contribution to a Symposium that focuses on the ideas of Margaret Jane Radin as a point of departure, and particularly on her analyses of propertization and commodification. While Radin focuses on the harms associated with commodification of the person, relying on Hegel's idea of alienation, we argue that objectification, and in particular objectification of various features of the digital environment, may have important system benefits. We present an extended critique of Radin's analysis, basing the critique in part on Gadamer's argument that meaning and application are interrelated and that meaning changes with application. Central to this interplay is the speculative form of analysis that seeks to fix meaning, contrasted with metaphorical thought that seeks to undermine some fixed meanings and create new meanings through interpretation. The result is that speculative and metaphorical forms are conjoined in an interactive process through which new adaptations emerge. Taking this critique an additional step, we use examples from contemporary intellectual property law discourse to demonstrate how an interactive approach, grounded in metaphor, can yield important insights.","PeriodicalId":258683,"journal":{"name":"The Cleveland State Law Review","volume":"16 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2008-06-18","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"128840996","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
Today we take for granted the division of labor in the courtroom whereby judges have the exclusive authority to determine the law applicable to a given case, while juries decide questions of fact. Yet this strict separation of powers did not become a fact of American legal life until the mid-19th Century, and was not recognized by the United States Supreme Court as a constitutional principle until the 1890s. Legal historians, while certainly aware of the tradition of the law-finding jury in early American legal practice, have thus far failed to fully explore its significance as a reflection of early American legal thought or the changes in American legal thought that brought about its end. This paper explores the demise of the law-finding jury and the historiography surrounding it in order to make two arguments. First, looking to history, it argues that the establishment of a strict separation of powers in the courtroom was not merely a product of political conflicts or increasing complexity in American society, but was in fact a reflection of a fundamental shift in the mainstream American ideology of the law, away from the colonial ideal of law as organic and innate to the citizen and towards an ideology of law as science. Next, looking to the present, this paper argues that, since a century of legal scholarship has obliterated the law-as-science ideology that justified relegating the jury the role of fact finder in the first place, we must reconsider our commitment to the current division of labor in the courtroom if it is to have any justification other than adherence to tradition.
{"title":"The Demise of the Law-Finding Jury in America and the Birth of American Legal Science: History and its Challenge for Contemporary Society","authors":"Jonathan Lahn","doi":"10.2139/ssrn.1030827","DOIUrl":"https://doi.org/10.2139/ssrn.1030827","url":null,"abstract":"Today we take for granted the division of labor in the courtroom whereby judges have the exclusive authority to determine the law applicable to a given case, while juries decide questions of fact. Yet this strict separation of powers did not become a fact of American legal life until the mid-19th Century, and was not recognized by the United States Supreme Court as a constitutional principle until the 1890s. Legal historians, while certainly aware of the tradition of the law-finding jury in early American legal practice, have thus far failed to fully explore its significance as a reflection of early American legal thought or the changes in American legal thought that brought about its end. This paper explores the demise of the law-finding jury and the historiography surrounding it in order to make two arguments. First, looking to history, it argues that the establishment of a strict separation of powers in the courtroom was not merely a product of political conflicts or increasing complexity in American society, but was in fact a reflection of a fundamental shift in the mainstream American ideology of the law, away from the colonial ideal of law as organic and innate to the citizen and towards an ideology of law as science. Next, looking to the present, this paper argues that, since a century of legal scholarship has obliterated the law-as-science ideology that justified relegating the jury the role of fact finder in the first place, we must reconsider our commitment to the current division of labor in the courtroom if it is to have any justification other than adherence to tradition.","PeriodicalId":258683,"journal":{"name":"The Cleveland State Law Review","volume":"41 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2007-11-07","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"132320430","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
This paper turns to historical evidence as a beginning point for understanding the constitutional vision and values of the "thorough and efficient system of common schools" mandated by Article VI, Section 2 of the Ohio Constitution. First, it traces the early development of public schooling in America and the complex relationship between public education and religion. The common school, as envisioned by the Ohio crusaders for its establishment, would bring diverse peoples together to create a common sense of citizenship. It would provide for citizen equality, and social and economic mobility; and it would safeguard liberty by developing a polity capable of self-government. The common school vision competed, however, with the existing reality of schools that were tuition-based, locally governed, diverse and sectarian. Prior to 1851, the conflict over competing visions of schooling - one embraced primarily by protestant school crusaders, the other embraced by the Catholic Church - had escalated into violent conflict in New York City and Boston. In Ohio, conflict relating to the nature of public education, and, more specifically, the use of public money for sectarian schools had not become violent, but had been vigorously debated since 1789. The inclusion of the provision for a "thorough and efficient system of common schools" in the Constitution of 1851 represented a victory for the advocates of a non-sectarian, state-operated system of schools that would encourage civic participation and avoid religious indoctrination. Next, the paper addresses efforts made to revise the state's educational provisions through constitutional amendments in 1874 and again in 1912. In considering and rejecting various amendments to Article VI, Section 2, the delegates to these conventions reinforced and redefined the non-sectarian ethos of public education. They also added new provisions to centralize authority for the efficient administration of education and to ensure state oversight over a single system of schools. Finally, the authors attempt to place the constitutional "common school ideal" in the context of contemporary educational debates. Advocates for school choice have argued that both religious and private schools attend to the values of equality and civic participation while allowing for diversity in values, religious views and educational approaches. The authors of this paper, however, suggest that the ethos or constitutional vision of the common school is at odds with expanding programs that support private and religious school choice.
{"title":"The Constitutional Common School","authors":"M. O’Brien, Amanda Woodrum","doi":"10.2139/SSRN.461028","DOIUrl":"https://doi.org/10.2139/SSRN.461028","url":null,"abstract":"This paper turns to historical evidence as a beginning point for understanding the constitutional vision and values of the \"thorough and efficient system of common schools\" mandated by Article VI, Section 2 of the Ohio Constitution. First, it traces the early development of public schooling in America and the complex relationship between public education and religion. The common school, as envisioned by the Ohio crusaders for its establishment, would bring diverse peoples together to create a common sense of citizenship. It would provide for citizen equality, and social and economic mobility; and it would safeguard liberty by developing a polity capable of self-government. The common school vision competed, however, with the existing reality of schools that were tuition-based, locally governed, diverse and sectarian. Prior to 1851, the conflict over competing visions of schooling - one embraced primarily by protestant school crusaders, the other embraced by the Catholic Church - had escalated into violent conflict in New York City and Boston. In Ohio, conflict relating to the nature of public education, and, more specifically, the use of public money for sectarian schools had not become violent, but had been vigorously debated since 1789. The inclusion of the provision for a \"thorough and efficient system of common schools\" in the Constitution of 1851 represented a victory for the advocates of a non-sectarian, state-operated system of schools that would encourage civic participation and avoid religious indoctrination. Next, the paper addresses efforts made to revise the state's educational provisions through constitutional amendments in 1874 and again in 1912. In considering and rejecting various amendments to Article VI, Section 2, the delegates to these conventions reinforced and redefined the non-sectarian ethos of public education. They also added new provisions to centralize authority for the efficient administration of education and to ensure state oversight over a single system of schools. Finally, the authors attempt to place the constitutional \"common school ideal\" in the context of contemporary educational debates. Advocates for school choice have argued that both religious and private schools attend to the values of equality and civic participation while allowing for diversity in values, religious views and educational approaches. The authors of this paper, however, suggest that the ethos or constitutional vision of the common school is at odds with expanding programs that support private and religious school choice.","PeriodicalId":258683,"journal":{"name":"The Cleveland State Law Review","volume":"21 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2003-11-13","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"124109505","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
The piece is a thoughtful and nuanced appraisal of the chances of the complete repeal of the Federal Estate Tax and of the consequences of such a repeal. The article proposes, among other things, that complete repeal would increase charitable giving, not decrease it. For instance, the paper includes discussion of charitable giving as a luxury good and the consumption of luxury goods. The idea of increased charitable gifts flowing from estate tax repeal is contrary to received wisdom. Recent commentary suggests that Professor Dobris' predictions about reform of the estate tax are likely to eventually become the law.
{"title":"Federal Transfer Taxes: The Possibility of Repeal and the Post Repeal World","authors":"Joel C. Dobris","doi":"10.2139/SSRN.319444","DOIUrl":"https://doi.org/10.2139/SSRN.319444","url":null,"abstract":"The piece is a thoughtful and nuanced appraisal of the chances of the complete repeal of the Federal Estate Tax and of the consequences of such a repeal. The article proposes, among other things, that complete repeal would increase charitable giving, not decrease it. For instance, the paper includes discussion of charitable giving as a luxury good and the consumption of luxury goods. The idea of increased charitable gifts flowing from estate tax repeal is contrary to received wisdom. Recent commentary suggests that Professor Dobris' predictions about reform of the estate tax are likely to eventually become the law.","PeriodicalId":258683,"journal":{"name":"The Cleveland State Law Review","volume":"23 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2002-09-20","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"134275902","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
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