Recent Print Edition:

Recent Print Edition:



Volume 108, Issue 5

Answers to Fulton’s Questions

Christopher C. Lund

Free exercise now finds itself at a crossroads. In 1990, in Employment Division v. Smith, the Supreme Court dramatically narrowed the Free Exercise Clause, holding that religious believers generally had no constitutional rights to religious exemptions from neutral and generally applicable laws. Smith was always controversial. Yet with each passing year, it seemed more and more like Smith had become a fixed part of the jurisprudential landscape. . . . 

Continue Reading

The Case for the Current Free Exercise Regime

Nathan S. Chapman

How the Supreme Court ought to implement the Free Exercise Clause has been one of the most controversial issues in U.S. rights discourse of the past fifty years. In Fulton v. City of Philadelphia, a majority of the justices expressed dissatisfaction with the standard articulated in Employment Division v. Smith, but they could not agree on what ought to replace it. This Essay argues that focusing on whether to overrule Smith is a distraction from the sensitive task of implementing the Free Exercise Clause. . . 

Continue Reading

Substantial Burdens as Civil Penalties

Michael A. Helfand

What is a substantial burden on religious exercise? This question continues to stand at the very center of religious liberty debates, animating both present interpretation of the Religious Freedom Restoration Act as well as the trajectory of future free exercise doctrine. In this Essay, I defend the view that courts should interpret the substantiality of burdens by examining the extent of government-imposed civil penalties for noncompliance. Doing so ensures courts avoid assessing the theological substantiality of burdens—inquiries that are prohibited by the Establishment Clause’s religious question doctrine. . . .

Continue Reading

The Increasingly Dangerous Variants of the “Most-Favored-Nation” Theory of Religious Liberty

Andrew Koppelman

The First Amendment prohibits discrimination against religion. In a short time, mostly in cases challenging efforts to contain the Covid pandemic, the Supreme Court has transformed this familiar rule into new, more exacting doctrines that can exempt religious people from almost any law. This Essay taxonomizes these doctrinal variants, showing that they are dangerous, indefensible mutations of the most-favored-nation (MFN) theory of religious discrimination. . . .

Continue Reading

Religion Law and Political Economy

Elizabeth Sepper & James D. Nelson

The field of law and religion has long neglected the economy of church-state disputes. Too often, scholarship and doctrine have relied on conjecture, rather than facts. And some nascent efforts to think through the economics of religious liberty risk repeating early law-and-economics mistakes, including excessive abstraction, reductive individualism, and illusory neutrality. In this Essay, we argue for integrating economics into religion law in a way that welcomes empirical evidence, engages in institutional analysis, and foregrounds normatively desirable economic arrangements. . . .

Continue Reading

The Religion Clauses After Kennedy v. Bremerton School District

Stephanie H. Barclay

The Supreme Court’s recent decision in Kennedy v. Bremerton School District marks an important point in the Court’s doctrine regarding the First Amendment’s Religion Clauses. Kennedy’s most noteworthy contribution to the law may have been its clear declaration that the Lemon test and its endorsement offshoots are no longer the governing legal standard. Instead, the Court will interpret the Establishment Clause “by ‘reference to historical practices and understandings.’” But what, precisely, does this historical approach entail? . . .

Continue Reading

Why Majority Religions Should Not Be Accommodated

Paul Gowder

This Essay argues that religious exemptions to generally applicable law (or overly generous ‘most favored nation’ interpretations of the concept of religious discrimination—which amount in practice to exemptions), also known as “accommodations,” should not be extended to members of faith groups with sufficient political, economic, or social power to defend themselves in the democratic process (“majority religions”). . . . 

Continue Reading

History’s Speech Acts

B. Jessie Hill

This Essay considers the historic relationship between symbolic public expressions of racial and religious identity—in particular, Confederate symbols and Christian religious displays. These displays sometimes comprise shared symbology, and the adoption of this symbology overlaps at distinct moments in U.S. history in which Confederate and Christian symbolism converged to express messages of combined religious and racial superiority. . . .

Continue Reading

Religious Freedom and Abortion

Micah Schwartzman & Richard Schragger

The demise of Roe v. Wade has raised a host of religious liberty questions that were submerged prior to the Supreme Court’s decision in Dobbs v. Jackson Women’s Health Organization. One question is whether state abortion bans are subject to challenge under the Establishment Clause, and state analogs, on the grounds that the government is forbidden from imposing religiously motivated laws. Another question is whether abortion restrictions violate the free exercise rights of people who are religiously motivated to seek, provide, or facilitate abortion services. . . .

Continue Reading

Does Dobbs Reinforce Democracy?

Nelson Tebbe

In his majority opinion, Justice Alito claimed that Dobbs would promote democracy by allowing the matter of abortion to be resolved by the people. He cited John Hart Ely, who had famously criticized Roe as an exercise of judicial review that was unjustified because it was unnecessary to reinforce representation. This symposium Essay interrogates one aspect of the democracy argument for Dobbs. Looking beyond simple majoritarianism, it explores another longstanding conception of democracy, one grounded in political equality. . . .


Continue Reading


Student Notes

Volume 108, Issue 4

Overbroad and Overreaching: How a Broad Interpretation of “Controlled Substance Offense” Diminishes Uniformity and Enhances. . .

Audrey Felderman

The Federal Controlled Substances Act criminalizes the possession of federally declared illicit substances. Under certain criminal statutes, repeat offenders who violate the Controlled Substances Act by possessing illicit substances may be eligible for a sentencing enhancement during federal sentencing under the U.S. Sentencing Guidelines. . . .

Continue Reading

What Is Material?: Creating a Conducive Environment for Climate-Related Information Disclosure in the Oil and Gas Industry

Nick G. Schwake

The Securities and Exchange Act of 1934 requires public companies to disclose material information to investors. The definition of “material” has been construed by courts to mean information that a reasonable investor would find substantially important. . . .

Dual Citizenship and Mandatory Military Service in the Republic of Korea

Michael Tae Woo

The Republic of Korea (“South Korea”) requires male citizens to perform military service. U.S. citizens who also hold South Korean citizenship—those born in the United States to parents who are citizens of South Korea—are not immune from this requirement. . . .

Continue Reading

“Buy GameStop!”: The Need to Rethink the Approach to Market Manipulation in a WallStreetBets World

Henry David Gale

In January of 2021, GameStop Corp., a struggling brick and mortar retail video game company, saw its share price increase by 2,700 percent. This Note looks at the prevailing forces that caused this meteoric rise and how the law should respond. Ultimately, such price volatility is detrimental to the stability of the securities market, so regulators should bring action against any bad actors that cause this type of volatility. . . .

Continue Reading

A Case for Restricting Routine Vehicle Roadblocks in Iowa

Joshua Winters

Iowa law enforcement agencies use routine vehicle roadblocks for a variety of purposes, some of which should no longer be permitted. This Note examines the history of Fourth Amendment analysis and the pertinent caselaw validating the use of routine vehicle roadblocks as a policing tactic. It further explores the use of routine vehicle roadblocks in Iowa and the relationship between Iowa’s courts and legislature on the matter. It presents data gathered from newspaper articles across the state to shed light on the issue. . . .

Continue Reading

Recent Online Edition:

Recent Online Edition:

A Response to Professor Choi’s Beyond Purposivism in Tax Law

Reuven Avi-Yonah
18 Iowa L. Rev. Online 69 (2023)

This Response to Professor Choi’s excellent Article questions whether the proposals made by the Article can solve the tax shelter problem and argues that a better response is to bolster purposivism with a statutory general anti-abuse rule (“GAAR”). . . .

Continue Reading

Legacy and Accountability

Ian Ayres
108 Iowa L. Rev. Online 1 (2022)

This Essay considers the ways that the law can help or hinder the accountability of actors and institutions. It draws two implications from the failure of Justice Ruth Bader Ginsburg to retire at a time that would have better secured the constitutional right to abortion. . . .

Continue Reading

A Response to Rules of Medical Necessity

Brendan S. Maher
108 Iowa L. Rev. Online 36 (2023)

Professors Monahan and Schwarcz’s recent Article in the Iowa Law ReviewRules of Medical Necessity, is a must-read for multiple audiences. In this short Response, I informally describe health insurance, and—using that perspective—describe and comment on why Rules of Medical Necessity is a piece of work that not only deserves attention from experts in the field, but is also one that casual readers should choose first when attempting to understand how health insurance works in theory and practice.

Continue Reading

Thompson v. Trump: Lost in the Funhouse of Brandenburg

Jay Sterling Silver
107 Iowa L. Rev. Online 151 (2022)

D.C. Circuit Court Judge Amit Mehta’s ruling in Thompson v. Trump denying immunity to ex-President Donald Trump in actions brought against him by a variety of plaintiffs for inciting the January 6th insurrection offered a moment of relief to the left side of the Great Partisan Divide in these dark times. Mr. Trump could finally be held responsible for a bit of the havoc he wreaked. . . .

Continue Reading

Connect with Us on Social Media

Connect with Us on Social Media