On the Freedom of a Congregation

Some of you may have seen the story last week that the American Anglicans who have left the Episcopal Church have formed a new nationwide organization. The realignment within the Episcopal Church has brought with it a number of lawsuits over ownership of each parish’s property, and more will doubtless be filed as other parishes and dioceses leave TEC. The most visible suit is probably the Falls Church litigation in Virginia, which has drawn significant amicus and media attention, even though it is only at the trial phase.  Many of the mainline Protestant denominations are struggling over the blessing of homosexual unions and the ordination of actively homosexual persons. As these denominations make significant decisions, the possibility exists for the litigation frenzy to spread elsewhere.  My own Evangelical Lutheran Church in America will issue a churchwide policy statement on human sexuality in August 2009. If the ELCA votes for policies that condone homosexual activity, many congregations will choose to leave.  The litigation that will almost inevitably follow between congregations seeking to leave and their dioceses will be tied up in interesting questions about the Establishment Clause. The U.S. Supreme Court has considered a number of these cases over the past 150 years, and has basically created two categories of churches: hierarchical and congregational. The categorization of a party in litigation is often times determinative of which faction will win the suit and hold on to the church’s assets.

During the second semester of my 3L year, I wrote a paper for my Non-Profit Law class, taught by Profs. Werner and Boynton, evaluating which category fits the ELCA. I have since taken the paper, lengthened it, updated it, beefed up the footnotes, and submitted it for publication. It will be coming out this spring in the Texas Review of Law & Politics. For the moment, however, I have posted the working draft on SSRN. If you’re looking for some light reading on your train ride home for Christmas break, I’d appreciate any thoughts or improvements you might suggest. The paper is titled, “On the Freedom of a Congregation: Legal Considerations When Lutherans Look to Change Denominational Affiliation.”

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Krueger on Lessons From the Chicago Sit-In and the WARN Act

Kreuger Alan Krueger, the Princeton economist, has this commentary in the New York Times on the recent sit-down strike at the Republic Windows plant in Chicago and the WARN Act:

The sit-in at the Republic Windows & Doors factory in Chicago last week brought the Worker Adjustment and Retraining Notification Act of 1988 — or WARN Act for short – to the forefront of attention. This law requires large employers (those with 100 or more employees) to provide 60 days of written advance notice prior to a plant closing or mass layoff.

The WARN Act was passed after a long-running, rancorous debate. President Ronald Reagan vetoed a trade bill because it included provisions of the WARN Act. The WARN Act was later reintroduced as a stand-alone measure and passed by Congress with enough votes to override a presidential veto in July 1988. The WARN Act became law without President Reagan’s signature, and he issued a statement calling the law “counterproductive.” . . .

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Eric Goldman on the Lori Drew Case

Former Marquette law professor Eric Goldman is posting a three-part series on his blog on the Lori Drew/Myspace “cyberbullying” case, in which the prosecution won a conviction based on an extremely broad interpretation of the Computer Fraud and Abuse Act. Basically, Drew was convicted of a misdemeanor for violating MySpace’s terms and conditions. Goldman is always worth reading on these matters; I cite him explicitly to my Internet law students every year for the proposition that if you can’t demonstrate $5,000 of “loss” under the CFAA, you’re just not thinking hard enough.

Part 1 of Goldman’s series discusses the possibility that, under the prosecution’s theory, ISPs may lose their Section 230 immunity for the activities of users if those users violate the terms of some other website. Part 2 looks at the question of whether someone who does not actually click on a click-through agreement can nevertheless be bound by it. Courts in the few non-criminal cases to consider this have essentially said “yes.” Part 3 will offer suggestions for drafters of website terms. [Update: Part 3 is now up.]

In other news related to the case, the defense, assisted by George Washington University law professor Orin Kerr, has filed a supplemental brief on its motion to dismiss, on the question of whether violation of contractual terms vitiates consent for purposes of a criminal unauthorized use statute. In true Internet law fashion, they look to the nearest litigated real-world analogues, in this case rental car agreements.

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