Tell your friends who may be interested in participating in this! -- Tom B.
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CALL FOR PAPERS: “Intellectual Property and Religious Thought”
University of St. Thomas School of Law, April 5, 2013
The University of St. Thomas will hold a conference titled “Intellectual Property and Religious Thought,” on April 5, 2013, co-sponsored by the Terrence J. Murphy Institute for Catholic Thought, Law, and Public Policy and The University of St. Thomas Law Journal. The conference will be held at the University of St. Thomas School of Law building in downtown Minneapolis.
The conference will bring together legal scholars, religious ethicists, religion scholars, and theologians for an interdisciplinary discussion of how religious themes, practices, and communities may inform and shape intellectual property law and policy. The time is ripe for such a conversation. The long, rich tradition of religious thought concerning property rights and obligations has only begun to be applied to the problems concerning intellectual property (IP) that are so central to the Information Age. The foundations for analyzing these issues are deeply contested culturally, as evidenced by the warring slogans “Copying is theft” and “Intellectual property is theft.” The Catholic Church and other religious bodies have issued brief but non-systematic statements on certain issues, such as biotechnology patents and access to patented medicines or seeds. Underlying cases such as Bowman v. Monsanto, now before the U.S. Supreme Court, are deep debates about social justice and the ownership of artificially created but naturally replicating things (in that case, patents on seeds)—both matters to which major religions have historically spoken. The conference and papers from it published in the University of St. Thomas Law Journal will be catalysts for this interdisciplinary conversation.
Keynote/featured speakers confirmed for the conference include (further invitations pending):
- Roberta Rosenthal Kwall, Raymond P. Niro Professor of Intellectual Property Law, DePaul University College of Law
- Paul Griffiths, Warren Professor of Catholic Theology, Duke University Divinity School
- Kevin Outterson, Associate Professor of Health Law, Bioethics, and Human Rights, Boston University School of Law
- Audrey Chapman, Joseph M. Healy, Jr. Chair in Medical Humanities and Bioethics, University of Connecticut School of Medicine
Two broad themes provide the framework for conference papers: the idea of creativity as gift, and the idea of stewardship of property as fundamental to ownership. These are meant to be highly flexible and allow for a wide range of topics, including but not limited to:
- Creativity as a gift: its implication for particular areas in copyright, patent, or other IP laws
- Limits on patentability, of living things or natural processes, in the light of religious frameworks
- Particular moral obligations of IP rights-holders, under stewardship or other religious themes
- IP and human development in religious perspectives, under frameworks such as “the preferential option for the poor” or others
- Analyses of particular creative/innovation industries or practices under religious norms and frameworks
- The role of religious norms or communities in (a) encouraging compliance with IP rights or (b) challenging IP rights
- Religious communities’ treatment of their own IP-eligible material
Depending upon the number of accepted papers, they may be presented in plenary or concurrent sessions. Accepted papers will be considered for publication in the University of St. Thomas Law Journal.
Abstracts of proposed papers should be one page and should include the author’s name, affiliation, mailing address, and e-mail address. The deadline for submission of proposals is December 3, 2012. Notification of acceptance will be made by December 13, 2012. Abstracts should be sent by e-mail to tcberg[at]stthomas.edu or by first-class mail to
Professor Thomas Berg, c/o Terrence J. Murphy Institute for Catholic Thought, Law, and Public Policy; University of St. Thomas, MSL 400, 1000 La Salle Avenue, Minneapolis, MN 55403-2015
The call for papers is on the web here.
Tuesday, October 2, 2012
An important question about the meaning of the Religious Freedom Restoration Act (RFRA) and parallel state laws is whether they protect against burdens imposed on religion through lawsuits by private parties. The circuits have split on the issue. It's posed in antidiscrimination suits against religious defendants, such as Elane Photography, where a lesbian couple sued the Christian photographer who declined to shoot their wedding; it's also posed in creditors' suits in the bankruptcy proceedings for the Archdiocese of Milwaukee. So it's important: if RFRAs don't apply to private-party suits, that's a significant hole in their protection. The split has arisen because, although one would think that a jury or bench verdict in a private civil suit imposes a governmental burden on religion (cf. New York Times v. Sullivan), the judicial-relief section of the statute says that parties may assert it as a claim or defense and "obtain appropriate relief against a government" (which some courts read to mean no relief, or claim or defense, against a private party).
Now a student of Doug Laycock's at UVA Law, Shruti Chaganti, has posted a paper demonstrating why RFRA should provide a claim/defense in private-party suits, showing what that "obtain relief" language really means. This is a very valuable contribution to religious freedom litigation. From the abstract:
In Parts I – III, the paper applies a purely textualist analysis, closely examining RFRA’s text and its drafting history. It concludes that the judicial relief section unambiguously provides a defense in citizen suits. Part IV supplements this conclusion by excavating the legislative history surrounding the religious liberty bills – the 1993 RFRA and the proposed 1999 Religious Liberty Protection Act (RLPA.) The record is clear that Congress had a shared understanding RLPA would provide a defense in citizen suits. In discussing the merits of the bill, both proponents and opponents cited to cases with private plaintiffs and advanced policy considerations based on the assumption that RLPA would apply in citizen suits.
Saturday, September 15, 2012
I've just posted this paper on SSRN, from the excellent conference that Mark Movsesian's and Marc DeGirolami's St. John's center sponsored this summer in Rome on "state-sponsored religious symbols in comparative perspective." Forthcoming in the Journal of Catholic Legal Studies. Abstract:
In Lautsi v. Italy, the European Court of Human Rights upheld the display of crucifixes in Italian state schools. Somewhat differently, the U.S. Supreme Court has upheld state-sponsored displays of symbols such as crèches or menorahs, and of religious texts such as the Ten Commandments, but only outside the school setting, and only if they are accompanied by other elements giving the overall display a secular message. In both instances, the high courts in question found that the displays could co-exist with religious liberty. But given the negative effects that such displays can have on dissenters and on social peace, the public argument for them would be much stronger if they do not merely co-exist with religious liberty but can actually promote it. This paper, for a symposium comparing state-sponsored displays in Europe and America, offers ways in which such displays can actually support a vigorous conception of religious liberty for all faiths. They can communicate important messages of limited government and transcendent freedoms, including freedom for religion to be relevant to public life, not confined to private, insular settings. I then, however, acknowledge and revisit some of the problems with such official displays, and I briefly suggest ways in which the vigorous conception of religious liberty can be recognized and promoted without them. The crucial thing is to cultivate the spirit I have described of limited government, transcendent rights, and a religious freedom whose scope extends to public settings.
Friday, August 31, 2012
I'm very pleased to share this announcement of the four distinguished finalist candidates for the deanship at St. Thomas--in order of their upcoming visits to campus:
- Patrick J. Borchers, Vice President for Academic Affairs and Professor of Law, Creighton University (former Dean, Creighton Law School)
- Robert K. Vischer, Associate Dean for Academic Affairs and Professor of Law, University of St. Thomas School of Law (Minnesota)
- Ruth Okediji, William L. Prosser Professor of Law, University of Minnesota (director and founder, Intellectual Property and Development Program)
- David S. Caudill, Arthur M. Goldberg Family Chair and Professor of Law, Villanova University School of Law
The announcement has brief summaries of just some of their academic and leadership credentials. Campus interviews will happen in September. We appreciate your prayers for this important decision in the life and mission of our school.
Tom
Thursday, August 23, 2012
In the vein of "the moral state of campus culture" ... Troy University, a state institution in Alabama, announces:
Construction of a new 376-bed residence hall at Troy University is under way, adding much-needed student housing, with a values-oriented twist.
In collaboration with St. Martin of Tours Catholic Church in Troy and the Archdiocese of Mobile, the residence hall will feature a Newman Center, a Catholic ministry center found on secular university campuses throughout the world and on more than 270 campuses in the United States. . . .
While housing in the residence hall will be open to all University students, Catholic students, as well as students of faith, may take part in Newman Center activities and attend events in a 2,300 square-foot chapel that will be the centerpiece of the development.
I'm sympathetic to the idea of creating such a space as a concrete (!) instantiation of faith-based values as an option for students. I hope everyone concerned is taking the necessary steps to structure the arrangement to avoid any serious Establishment Clause challenges. The university's news release says: "Troy University Foundation is building the facility, with financing provided by Troy Bank and Trust. Once constructed, trustees approved a measure that allows the University to lease the facility from the Foundation, a private entity, for its management and maintenance." I can't tell for sure from the release whether (1) the chapel is a Catholic chapel, or the sort of general chapel found at many public universities, and (2) to what extent the "management and maintenance" by the university (I think the release says it's by the university) extends to the Newman Center and/or the chapel.
Thursday, August 16, 2012
See here (the full opinion by the student judiciary is not online so far as I can see) (UPDATE: here is the full, pretty extensive, student opinion):
InterVarsity’s chapter at the State University of New York at Buffalo (UB) is once again functioning as a recognized student organization following a July 28th decision by UB’s Student Wide Judiciary (SWJ). The chapter was de-recognized by the Student Association Senate on April 15, 2012. The de-recognition followed the resignation of the chapter treasurer, who stepped down from his leadership position after revealing that he did not agree with InterVarsity’s Doctrinal Basis.
SWJ ruled that UB’s Student Association Senate improperly failed to distinguish between leadership requirements and membership requirements. InterVarsity chapter activities are open to all students. The 16-page ruling said that “it is common sense, not discrimination, for a religious group to want its leaders to agree with its core beliefs.”
HT: Christianity Today; reader Clark Huston for the full-opinion link
Monday, June 25, 2012
It was a major one, on a recurring question that, after several years, finally reached the Supreme Court, with the federal government pitted against a religious body. The lower courts decided it on fairly fact-specific issues, but in its SCT brief the Administration surprisingly took a much broader position against the religious liberty claim. Embarrassingly for the Administration, the Court slapped it down 9-0. Even justices expected to the sympathize with the federal laws in question rejected the Administration's broad position. And Chief Justice Roberts's opinion for the Court specifically took a pot-shot at the implications of the government's argument.
The case, of course, is Gonzales v. O Centro Espirita Beneficiente Uniao do Vegetal, 546 U.S. 418 (2006), in which the Court unanimously affirmed a preliminary injunction preventing the Bush Administration from pursuing criminal prosecution of a small sect that used a hallucinogenic drug in a tea that members consumed at worship services. In the lower courts the government had argued that the tea could cause significant harm to worshipers and could be diverted to recreational uses. But in the Supreme Court the Solicitor General claimed it didn't have to make any such arguments. It claimed instead that the mere listing of a drug on the federal schedule of controlled substances conclusively showed a "compelling interest" under RFRA--despite the statute's requirement that the government show a compelling interest in applying the law "to the person" in question. The Chief Justice's unanimous majority opinion commanded the votes of the non-druggies on the Court as well as the druggies. It also derided the government's broad argument as "the classic rejoinder of bureaucrats throughout history: If I make an exception for you, I'll have to make one for everybody, so no exceptions." The Court (correctly) found that the government's "slippery slope concerns" would undermine RFRA because they "could be invoked in response to any RFRA claim for an exception to a generally applicable law." For those who paid attention, it was an embarrassing rebuke to the Administration and its litigation posture.
This term's ministerial-exception case, Hosanna-Tabor, shared the same features, and end-of-term reviews are reminding us how badly the Obama Administration did before the Court in that case among others. The current administration was wrong in Hosanna-Tabor, as was argued by many briefs, including the one Rick and I filed, argued. But in the arguments about whether the Obama Administration is uniquely negative on religious liberty, I would caution against putting too much weight on Hosanna-Tabor. The O Centro tea case shows that administrations of different perspectives can let basically valid law-enforcement concerns it favors (anti-drugs for Bush, anti-discrimination for Obama) go too far and trump religious liberty to a point where all the justices, however sympathetic to the law in question, say "No."
Tuesday, June 19, 2012
I'm off to enjoy Marc's and Mark Movsesian's conference and some teaching in Rome, but one thing beforehand....
The Democrats for Life have filed a comment in the latest round of the contraception-mandate dispute, arguing that the administration's proposed compromise is inadequate and conscience protection must be expanded. (I sit on DFL's board, as many know, and contributed to the analysis in the comment.) The comment focus attention on two points: (1) the especially serious conscience problems posed by medications that may reasonably be thought to cause abortions of new embryos in some cases, and (2) the bad precedent set by inserting HHS's narrow definition of "religious employer" into federal law. Here's a taste of the argument on point 2:
The definition, unprecedented in federal law in its narrowness, fails to give equal respect to the activities of service, mercy, and justice that lie at the core of religious practice for many faiths. President Obama has spoken eloquently of the “millions of Americans who share [this] view of their faith, who feel they have an obligation to help others. . . . [W]hile these groups are often made up of folks who’ve come together around a common faith, they’re usually working to help people of all faiths or of no faith at all.” But remarkably, under the HHS “religious employer” definition, these very acts of service to non-adherents that the President commended are the basis for denying an organization exemption as a “religious employer.”
In its March 2012 advance notice (the ANPRM), HHS proposed to retain this deeply objectionable definition while extending a more limited accommodation to a broader category of “religious organizations.” But even assuming that a limited accommodation could be developed that protected organizations’ claims of conscience, it would still be wrong and dangerous to insert the narrow definition into federal law. The adoption of this language in the Code of Federal Regulations, even as part of a two-tiered set of accommodations, would legitimate it in future situations. The March ANPRM also stated that “whatever definition of religious organization is adopted will not be applied with respect to any other provision of the PHS Act, ERISA, or the Code, nor is it intended to set a precedent for any other purpose.” This assurance is inadequate, as the history of this debate teaches. [Some case analysis here...] Just as the mandate with minimal exemption was bootstrapped from narrower state laws to a far broader federal mandate, it likely will be bootstrapped later to other federal statutes. HHS, having legitimized the minimal exemption by introducing it into federal law, will have no way of stopping others from using it as a precedent.
