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Constitutional Law Speaker Series


Thursday, October 1, 2015 12:00 pm
John Mikhail, Georgetown Law

The Constitution and the Philosophy of Language: Entailment, Implicature, and Implied Powers

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Penn Law Faculty Lounge, Silverman 144

After graduating from Stanford Law School, where he was Senior Article Editor of the Stanford Law Review and Senior Submissions Editor of the Stanford Journal of International Law, Professor Mikhail joined the law firm of Simpson, Thacher & Bartlett. He then served as a judicial clerk to Judge Rosemary Barkett on the U.S. Court of Appeals for the Eleventh Circuit.

Professor Mikhail’s research interests include torts, criminal law, constitutional law, international law, jurisprudence, moral and legal philosophy, legal history, and law and cognitive science. He received his Ph.D. in Philosophy from Cornell University and was a Lecturer and Research Affiliate in the Department of Brain and Cognitive Sciences at the Massachusetts Institute of Technology.

Thursday, November 19, 2015, 12:00 pm
Alan E Brownstein, UC Davis School of Law

Penn Law Faculty Lounge, Silverman 144

Alan Brownstein, a nationally recognized Constitutional Law scholar, teaches Constitutional Law, Law and Religion, and Torts at UC Davis School of Law.

Professor Brownstein will be discussing two problems:

Problem 1 focuses on how we can reconcile freedom of speech and religion clause values. From a broad perspective, the question is how we should deal with the fact that providing special protection to religious exercise or limiting government support to religious activities and institutions will distort the market place of ideas in favor of or against religious ideas. The narrow doctrinal question asks whether we should characterize expressive religious activity as speech or as the exercise of religion for constitutional purposes. From a real world perspective, many of these activities (sermons, prayer, proselytizing, discussions of scripture etc.) can be legitimately identified as both religious exercise and speech. But for constitutional law purposes, a lot turns on the characterization we choose. Within limits, government can accommodate religious exercise and treat religious conduct differently (and more favorably) than non-religious conduct. But under the free speech clause, religion is a viewpoint of speech and cannot by treated more or less favorably than secular speech or expressive conduct.


Problem 2 involves Establishment Clause constraints on discretionary accommodations. At some point, government cannot create accommodations that impose too high a burden on third parties, privilege religion too much, or unfairly favor certain religions over others. But how exactly are courts to determine when an accommodation goes too far or unacceptably favors certain faiths over others?

 Materials relating to Problem 1:

Protecting Religious Liberty: The False Messiahs of Free Speech Doctrine and Formal Neutrality, 18 Journal of Law & Politics 119-150 and 164 – 172 (2002)

The Religion Clauses as Mutually Reinforcing Mandates: Why the Arguments for Rigorously Enforcing the Free Exercise Clause and Establishment Clause Are Stronger when Both Clauses Are Taken Seriously, 32 Cardozo L. Rev. 1701, 1711-19 (2011)

Taking Free Exercise Rights Seriously, 57Case Western Reserve L. Rev. 55, 137-44 (2006)

Materials relating to Problem 2:

Taking Free Exercise Rights Seriously (see above) at 70-81 and 128-130

Continuing the Constitutional Dialogue: A Discussion of Justice Stevens’s Establishment Clause and Free Exercise Jurisprudence, 106 Northwestern University L. Rev. 605, 636-48 (2012)

The Religion Clauses as Mutually Reinforcing Mandates (see above) at 1727-29

Wednesday, March 23, 2016, 12:00 pm
Michael J. Gerhardt, UNC School of Law

Penn Law Faculty Lounge, Silverman 144


Michael Gerhardt is Samuel Ashe Distinguished Professor of Constitutional Law.  He specializes in constitutional conflicts and has been active as a scholar, advisor, special counsel, expert witness, and public commentator on all the major conflicts between presidents and Congress over the past quarter century.