Perry Dane

This entry in the Encyclopedia of the Supreme Court of the United States (David S. Tanenbaus, Editor-in-Chief) discusses the landmark decision in West Virginia State Board of Education v. Barnette, 319 U.S. 624 (1943). Barnette held that students have a constitutional right to refuse to salute the flag or recite the pledge of allegiance. The case marks an important moment in free speech jurisprudence and in the Supreme Court's treatment of the relationship between individual conscience and the state. It is particularly famous for its rhetorical flourishes, both in Justice Jackson's majority opinion and in Justice Frankfurter's vehement and unusually autobiographical dissent. It also figures importantly in the history of American minority religions and in the continuing struggle to define the fundamental kernel of American identity. My short essay discusses, among other things, Barnette's relationship to Minersville School District v. Gobitis, 310 U.S. 586 (1940), which it overruled; the decision's major doctrinal import for establishing that the guarantee of free speech embraces, not just the right to speak, but the right to refrain from enforced speech; its much lesser significance to the law of free exercise of religion; the role the case played in the jurisprudential and often personal tension on the Court over questions of judicial restraint and constitutional method; and the different views represented in the majority and dissenting opinions, and very much alive in a continuing American debate, over the nature and central themes of American patriotism and the ability of the American community to move beyond a purely "proceduralist" conception of itself and its deepest values.

This essay on choice of law (private international law) appears in the second edition of the Blackwell Companion to Philosophy of Law and Legal Theory, edited by Dennis Patterson. It is a revision of an entry on the same topic in the first edition of the book. The essay focuses on the epic battle over the course of the last century between two very different traditions - classical choice of law, articulated most completely by Joseph Beale in the 1930s, and modernist choice of law, which inspired a massive and still controversial revolution in choice of law thinking. The essay isolates eight distinct jurisprudentially significant premises of classicism, including territorialism, a commitment to a regime of rules, and a conception of law and legal rights that I have called “vestedness.” It then discusses the modernist challenges to most, but significantly not all, of those premises. It also emphasize, however, the degree to which the eight pillars of the classical tradition are actually conceptually independent, and could, at least in principle, be mixed and matched in various combinations and in the service of very different account of choice of law enterprise. Finally, the essay turns to other debates, both within the classical and modernist traditions separately and transcending the differences between them.

This short essay comments on the United States Supreme Court's recent decision in Bowles v. Russell, 127 S. Ct. 2360 (2007), and on Professor Scott Dodson's critique of Bowles at 102 Nw. U. L. Rev. Colloquy 42 (2007). The majority in Bowles held that the federal statutory time limit for the filing of appeals is jurisdictional, and must therefore be enforced literally and mercilessly. The dissent argued that the time limit is not jurisdictional, and need not be enforced literally and mercilessly. My essay expresses no strong view on whether this particular time limit is actually jurisdictional. It does, however, argue that the underlying assumption - that if a time limit is jurisdictional, it is necessarily draconian - is simply mistaken. It treats as mandatory not only the jurisdictional rule itself, but also one particular, literal and merciless, interpretation of that rule. This move is not only entirely unnecessary, it is belied by the treatment of jurisdictional questions in other, less arithmetical, contexts. More broadly, I argue in this essay, as I did in more detail in an earlier, exhaustive, article,Jurisdictionality, Time, and the Legal Imagination, 23 Hofstra Law Review 1 (1994), that the doctrine of jurisdictional time limits represents a certain neurotic turn in the law. More particularly, in Bowles, both the majority and the dissent fail to embrace the potential of the legal imagination. The majority seems to believe that the only way to respect the importance of jurisdictionality is to construe jurisdictional rules literally. The dissent, meanwhile, ends up chopping away at the rich tradition of the notion of jurisdiction in American law, making no real effort to investigate the roots of the legal ideas it is trying to explicate. Both these errors reflect more general, deeply consequential, and sad trends in American legal reasoning and legal culture.

This article appeared in Raven, a journal devoted to vexillology, the scholarly study of flags. In recent years, vexillologists have become increasingly interested in developing criteria for judging the aesthetic quality of particular flag designs. My article gently critiques one such effort - titled "Good Flag, Bad Flag" - for proposing a set of overly simple, dogmatic, rules of flag design. It proposes, instead, a more subtle and historically sensitive approach to the study of flag design and aesthetics grounded in the simple observation that flag design has tended over the centuries to be guided by various distinct styles or genres, sometimes called flag families, many of them borrowed from related disciplines. These genres or styles or families have distinct artistic and political histories, and the article proposes that the story of flag design and aesthetics can be told in terms of a continuing process of experimentation and development as various genres get tried out, work well or badly, wax and wane, combine and reconfigure, and - sometimes - get transformed by a moment of brilliant rule-breaking. The article suggests that the criteria in "Good Flag, Bad Flag" can best be understood as one flag genre among others, a codification of a more eclectic and autonomous set of flag traditions arising out of political and aesthetic developments in the second half of the twentieth century. More broadly, the article situates the relatively new discipline of vexillology in the space between a hobbyist activity and a scholarly enterprise, relates vexillology to more established fields of applied design such as architecture, and argues for the necessary and mutually reinforcing relationship between aesthetic theory and rigorous social science in the study of any applied art, whether vexillology or any other.

The Hebrew Bible is the shared canonical text of Judaism and Christianity. It might even be the central common text of Western civilization. Yet this collection of books is also remarkable for the degree to which its meaning and authority for both believing Christians and believing Jews is so thoroughly embedded in, and even superseded by, later texts - the New Testament for Christians and the rabbinic corpus for Jews. Nevertheless, over the centuries, in various places and against the backdrop of various contexts, certain persons and movements in both traditions have repeatedly sought to reclaim the authority or religious meaning of the Hebrew Bible in-itself, so to speak, alongside or instead of the Bible’s traditional embedded meaning, in the name of one or another restorationist, reforming, revisionist, or radical agenda. These persons and movements have often been suppressed, sometimes violently. But they keep appearing as a hodge-podge of distinct but oddly similar historical moments - Persian Karaites, Russian Judaizers, Christian Hebraists, Puritans, Calvinists, Reform Jews, Zionists, Old Testament theologians, and many others - to the point that it is fair to say that they represent a consistent, abiding, tendency, a counter-story to the main trends of both Judaism and Christianity. This Article explores this recurring phenomenon. After a selective historical survey, it collects threads of that history to propose some common themes in the sporadic but insistent return to the Hebrew Bible in-itself. It then explores the complex task of reintegrating the Hebrew Bible-in-itself back into the larger complex of Jewish and Christian tradition and suggests some broader implications of that lure for the place of the Hebrew Bible in Western culture and the distinct, paradoxical, nature of its religious and textual authority.

This essay on law and religion appears in the second edition of the Blackwell Companion to Philosophy of Law and Legal Theory, edited by Dennis Patterson. It is a revision of a similar entry in the book’s first edition. The essay opens by broadly discussing the complex relationships between law and religion writ large as movements in human history – social, cultural, intellectual, and institutional phenomena with distinct but often overlapping logics and concerns. It then hones in on the efforts of secular law to make sense of religion and determine its place in the civil state. The essay argues that, while the questions raised by the American Bill of Rights’ religion clauses connect in some important respects to broader constitutional principles such as free expression and equality, the most interesting and theoretically excruciating conundrums involving religion need to be approached on their own unique terms. Two useful rubrics for such understanding are “separation” and “deference.” Any honest account must also admit, however, that there is an “intractable residue,” questions in the relation of religion and law to which there simply is no determinate or completely satisfactory answer. Finally, the essay emphasizes that the full texture of the legal imagination’s effort to grapple with religion only becomes apparent in the wider range of subconstitutional and nonconstitutional contexts beyond the standard litany of constitutional discourse.

This Article was written during the last days of Bill Clinton’s presidency as negotiations toward an Israeli-Palestinian settlement seemed to be on track toward some sort of agreement. The Article responds to the argument made by Professor John Quigley that certain elements of the anticipated compromises on such issues as borders, settlements, displaced persons, and Jerusalem would violate Palestinian rights under international law that were beyond the power of the Palestinian authorities to negotiate away. My article only briefly responds to Professor Quigley’s reading of international law. Its more important, and theoretically significant, argument, is that assessing the 'legality' of this sort of potential peace agreement needs to go beyond the four corners of black-letter public international law to embrace a more 'legal pluralist' approach that recognizes (1) the status of public international law as itself only one legal perspective among others, (2) the divergent but powerful normative landscapes occupied by the two sides, in all their historic, religious, and nationalistic dimensions, (3) the possibility that resources for reconciliation might be found within those perspectives, and not merely from a vantage point external to them both, (4) the extent to which the norms of public international law can be built from the ground up, so to speak, through the effort to reconcile the opposing parties and their competing normative worlds, and (5) the importance of the aspiration to peace as a legal value in its own right. Though this Article was written during a time of optimism now shattered by intervening events, its argument about the importance and potential force of a genuine encounter between the normative worlds constructed by the two sides to the conflict might, if anything, be more urgent today as the difficult effort to achieve some measure of peace is slowly and far-from-hopefully resuming.