Digital Commons Network^™

Sacred Cows, Holy Wars: Exploring The Limits Of Law In The Regulation Of Raw Milk And Kosher Meat, Kenneth Lasson

Kenneth Lasson

SACRED COWS, HOLY WARS Exploring the Limits of Law in the Regulation of Raw Milk and Kosher Meat By Kenneth Lasson Abstract In a free society law and religion seldom coincide comfortably, tending instead to reflect the inherent tension that often resides between the two. This is nowhere more apparent than in America, where the underlying principle upon which the first freedom enunciated by the Constitution’s Bill of Rights is based ‒ the separation of church and state – is conceptually at odds with the pragmatic compromises that may be reached. But our adherence to the primacy of individual rights …

Beyond Judicial Populism, Anil Kalhan

Anil Kalhan

No abstract provided.

Quoted In Usa Today Article "Judge's Strike At U.S. Surveillance Won't Be Last Word", Jimmy Gurule

Jimmy Gurule

Jimmy Gurule was quoted in the USA Today article "Judge's strike at U.S. surveillance won't be last word" by Kevin Johnson and Richard Wolf on December 17, 2013. "It is not clear one way or another how this will be ultimately decided,'' said University of Notre Dame law professor Jimmy Gurule, who applauded Leon's decision as a "victory for the U.S. Constitution and the rule of law.''

Beware The Sleeper: Harris V Quinn, Kent Greenfield

Kent Greenfield

No abstract provided.

Eldred And Lochner: Copyright Term Extension And Intellectual Property As Constitutional Property, Paul M. Schwartz, William Michael Treanor

Paul M. Schwartz

Since the ratification of the constitution, intellectual property law in the United States has always been, in part, constitutional law. Among the enumerated powers that Article I of the Constitution vests in Congress is the power to create certain intellectual property rights. To a remarkable extent, scholars who have examined the Constitution's Copyright Clause have reached a common position. With striking unanimity, these scholars have called for aggressive judicial review of the constitutionality of congressional legislation in this area. The champions of this position--we refer to them as the IP Restrictors--represent a remarkable array of constitutional and intellectual property scholars. …

"Free Speech Vs. Infringement In Suit On Alabama Artwork" (Quotes: Mark Mckenna) New York Times, Mark Mckenna

Mark P. McKenna

"Free Speech vs. Infringement in Suit on Alabama Artwork" New York Times article by Daniel Grant quotes Mark McKenna.

The case is of great interest to “artists all over the country whose free speech rights should not be subject to licensing arrangements by colleges and universities,” said Mark P. McKenna, a law professor at Notre Dame who was part of a group of professors that wrote a friend-of-the-court brief to the Court of Appeals on Moore’s behalf.

Estado Contra Sociedade, Paulo Ferreira Da Cunha

Paulo Ferreira da Cunha

Não é só o Estado que está doente. É também a sociedade, onde proliferam tristeza, vileza, vaidades ridículas, ódio figadal, fatuidade imensa, laxismos, preguiça, abatimento, oportunismo. A sociedade tem de encontrar em si forças para se regenerar, não podendo contar com um Estado ele próprio em desagregação.

Q&A: “The Sc Has Treated Judicial Independence As A Static Concept”, Anil Kalhan

Anil Kalhan

No abstract provided.

A Reply To Jamal Greene, Katharine G. Young

Katharine G. Young

No abstract provided.

Rick Garnett Was Quoted In Npr Article "Aclu Sues, Claiming Catholic Hospitals Put Women At Risk.", Richard Garnett

Richard W Garnett

Rick Garnett was quoted in NPR article "ACLU Sues, Claiming Catholic Hospitals Put Women At Risk" by Julie Rovner. "Yeah, this is a novel case," says , a law professor at the University of Notre Dame. While there's nothing new about suing doctors or hospitals, Catholic or not, Garnett says, "to sort of claim that it is negligence for the bishops to be issuing directives reminding Catholic hospitals what the church's teachings are with respect to things like abortion and sterilization are, that is a stretch." And he wonders what future if any such lawsuits against the church may have. …

Immigration Policing And Federalism Through The Lens Of Technology, Surveillance, And Privacy, Anil Kalhan

Anil Kalhan

With the deployment of technology, federal programs to enlist state and local police assistance with immigration enforcement are undergoing a sea change. For example, even as it forcefully has urged invalidation of Arizona’s S.B. 1070 and similar state laws, the Obama administration has presided over the largest expansion of state and local immigration policing in U.S. history with its implementation of the “Secure Communities” program, which integrates immigration and criminal history database systems in order to automatically ascertain the immigration status of every individual who is arrested and booked by state and local police nationwide. By 2012, over one fifth …

Democracy And Renewed Distrust: Equal Protection And The Evolving Judicial Conception Of Politics, Bertrall L. Ross

Bertrall L Ross

Judicial interpretations of the Equal Protection Clause have undergone a major transformation over the last fifty years. A Supreme Court once suspicious of the democratic losses of discrete and insular minorities, now closely scrutinizes their democratic victories. A Court once active in structuring the democratic process to be inclusive of racial and other minorities, now views minority representation in the political process as essentially irrelevant. A Court once deferential to exercises of congressional power that enhanced the equal protection rights of minorities, now gives Congress much less leeway.

What explains these shifts? An easy explanation is that the Supreme Court …

Constitutional Theory And Political Activism: Theorectical And Practical Problems Related To Social Fundamental Rights, Carlos Luiz Strapazzon, Rodrigo Goldschmidt

Carlos Luiz Strapazzon

The main purpose of this text is to provide a critical discussion about the use, in legal theory, of the compound term ¨judicial activism¨. The institutional environment of analysis of this work is the Brazilian constitutional democracy, its complete system of fundamental rights and mixed model of constitutionality control. The main hypothesis discussed here is that the contemporary theory of democracy and the fundamental rights, in institutional settings such as Brazil, offers less obscure solutions to explain news forms of judicial performance operated to protect fundamental rights to positive actions. For that purpose, the article analyzes the uses of the …

Rick Garnett Quoted In Washington Post Article "Court Confronts Religious Rights Of Corporations", Richard Garnett

Richard W Garnett

Rick Garnett quoted in Washington Post article "Court Confronts Religious Rights of Corporations" by ADAM LIPTAK. “This is a perfect storm,” said Richard Garnett, a law professor at Notre Dame, adding that it is also a worrisome one. “Debates about campaign finance in Citizens United and abortion and Obamacare,” he said, “could distort the court’s analysis of religious freedom.”

Rick Garnett Quoted In Ncr Article "Supreme Court Takes Up Contraceptive Mandate, Will Rule On Religious Rights Of Corporations", Richard Garnett

Richard W Garnett

Rick Garnett quoted in NCR article by David Gibson "Supreme Court takes up contraceptive mandate, will rule on religious rights of corporations" on November 26, 2013. Given the polemics, Notre Dame law professor Richard Garnett said he worries "that what I regard as accidental aspects of the case -- the Citizens United debate, the 'war on women' rhetoric from the last election, the controversies about (health care reform) -- will distract the court from the more specific legal question presented, which has to do, again, with the interpretation of a particular, and an important, federal statute."

Children, Parents & The State: The Construction Of A New Family Ideology, Deseriee A. Kennedy

Deseriee A. Kennedy

More than twenty-five states allow courts to consider parental incarceration or conviction of a crime in determining whether to terminate parental rights. This problem is of increasing significance as a result of dramatic growth in incarceration rates, particularly among women who were often the primary and sole caretaker of their children before their imprisonment. Social scientists have recognized that the reality for parents in many communities is one of widespread and repeated incarceration, which has a devastating effect on families and communities. The problem is magnified by a failed drug policy and the Adoption and Safe Families Act, which, in …

Mr., Johnmary Jideobi

JOHNMARY CHUKWUKASI JIDEOBI Esq.

As the title of this article suggests, the preoccupation of this writer is to embark on a voyage of enquiry into the issues and controversies stirred by and surrounding the governorship election held on November 16th,2013 in Anambra State of Nigeria especially an in-depth examination of how far/well the institution of the Independent National Electoral Commission (hereinafter indiscriminately referred to as “the INEC” “the Commission” or “the Umpire” for the purposes of convenience and elimination of prolixity) discharged its constitutionally assigned onerous responsibility.

Against the background of the weighty allegations of administrative lapses resulting in “disappearance” of names of registered …

The Passing Of Nonsectarianism--Some Reflections On The School Prayer Case, Robert E. Rodes

Robert Rodes

Engel v. Vitale was a landmark case which marked a jurisprudential shift in the constitutional meaning of the Establishment Clause. This paper, written in the aftermath of this important case, reflects on, and contrasts, England's historical establishment of the Church with historical nonsectarianism in the United States. After analyzing the role which the tripartite Protestant-Catholic-Jew nonsectariansm played in society before Engle, the paper suggests that nonsectarianism served the beneficial purpose of directing the whole institutional structure of society toward the last end of human beings. With the passing of nonsectarianism, the nation is left with the problem of accurately and …

The Bin Laden Exception, Erik Luna

Erik Luna

Osama bin Laden's demise provides an opportune moment to reevaluate the extraordinary measures taken by the U.S. government in the "war on terror," with any reassessment incorporating the threat posed by al Qaeda and other terrorist organizations. Some modest analysis suggests that terrorism remains a miniscule risk for the average American, and it hardly poses an existential threat to the United States. Nonetheless, terrorism-related fears have distorted the people's risk perception and facilitated dubious public policies, exemplified here by a series of programs implemented by the Transportation Security Administration (TSA). Among other things, this agency has adopted costly technology and …

On Checking The Artifacts Of Canaan: A Comment On Levinson's "Confrontation", Thomas L. Shaffer

Thomas L. Shaffer

No abstract provided.

H. Jefferson Powell On The American Constitutional Tradition: A Conversation, Thomas Shaffer, John Robinson

Thomas L. Shaffer

No abstract provided.

Incentives To Create Under A "Lifetime-Plus-Years" Copyright Duration: Lessons From A Behavioral Economic Analysis For Eldred V. Ashcroft, Avishalom Tor, Dotan Oliar

Avishalom Tor

In this Article, we highlight for the first time some of the significant but hitherto unrecognized behavioral effects of copyright law on individuals' incentives to create and then examine the implications of our findings for the constitutional analysis of Eldred v. Ashcroft. We show that behavioral biases - namely, individuals' optimistic bias regarding their future longevity and their subadditive judgments in circumstances resembling the extant rule of copyright duration - explain the otherwise puzzling lifetime-plus-years basis for copyright protection given to individual authors, and reveal how this regime provides superior incentives to create. Thus, insofar as the provision of increased …

The Supreme Court And The Politics Of Death, Stephen F. Smith

Stephen F. Smith

This article explores the evolving role of the U.S. Supreme Court in the politics of death. By constitutionalizing the death penalty in the 1970s, the Supreme Court unintentionally set into motion political forces that have seriously undermined the Court's vision of a death penalty that is fairly administered and imposed only on the worst offenders. With the death penalty established as a highly salient political issue, politicians - legislators, prosecutors, and governors - have strong institutional incentives to make death sentences easier to achieve and carry out. The result of this vicious cycle is not only more executions, but less …

The Rehnquist Court And Criminal Procedure, Stephen F. Smith

Stephen F. Smith

No abstract provided.

The Last Days Of Erastianism: Forms In The American Church-State Nexus, Robert E. Rodes

Robert Rodes

In the long history of Christendom, an Erastian view of the relation between Church and State has existed in tension with a High Church view. This paper explores the current state of our current shopworn Erastian-like church-state nexus and considers what forces may bring a more relevant and effective institutional High Church witness into being. The fact that the United States has an Erastian-like church-state relation is borne out in a line of cases involving the judicial resolution of intra-church disputes and the effect to be given the mandates of ecclesiastical authority. It is also borne out in legislative and …

Religious Education And The Historical Method Of Constitution Interpretation - A Review Article, Robert Rodes

Robert Rodes

No abstract provided.

H. Jefferson Powell On The American Constitutional Tradition: A Conversation, Thomas L. Shaffer, John H. Robinson

John H. Robinson

No abstract provided.

Employment Discrimination: Recent Developments In The Supreme Court (Symposium: The Supreme Court And Local Government Law: The 1992-93 Term), Eileen Kaufman

Eileen Kaufman

At a symposium entitled, “The Supreme Court and Local Government Law; The 1992/93 Term”, Professor Eileen Kaufman spoke about the cases involving employment discrimination that were decided during that particular Term, Hazen Paper Company v. Biggins and St. Mary's Honor Center v. Hicks. While Hazen is an age discrimination case and St. Mary's is a Title VII case, they can be viewed as companion cases which serve to explain what an employment discrimination plaintiff must now establish when attempting to prove disparate treatment by indirect evidence. By way of preview, suffice it to say that plaintiff's task has been made …

(In)Comunicação E Cidadania, Paulo Ferreira Da Cunha

Paulo Ferreira da Cunha

Há problemas complexos na comunicação social de um tempo regido por uma Constituição formal democrática e social e simultaneamente dominado na realidade, no plano da comunicação social, por poderosas máquinas informativas ou desinformativas, seja administradas pelo Estado, seja por grupos económicos privados. Emergem assim atores sociais e fazedores de opinião e temas de discussão (ou não) que têm muito tempo de antena, por razões que não são claras. Porquê esses e não outros? E ficam na penumbra pessoas e temas cuja importância aconselharia a que fosse dado espaço. O presente artigo aponta algumas das disfunções da comunicação que pode realmente …

Is Medicaid Constitutional?, Timothy Stoltzfus Jost

Timothy S. Jost

Not available.