Digital Commons Network^™

The New Natural Law Theory: A Reply To Jean Porter, Gerard V. Bradley, Robert George

Journal Articles

The theory of practical reasoning and morality proposed by Germain Grisez, and developed by him in frequent collaboration with John Finnis and Joseph Boyle, is the most formidable presentation of natural law theory in this century. Although work by Finnis and others has brought this "new natural law theory" (NNLT) to the attention of secular philosophers, the theory is of particular interest to Catholic moralists. This is because NNLT provides resources for a fresh defense of traditional moral norms, including those forbidding abortion, euthanasia, and other forms of "direct" killing, as well as sexual immoralities such as fornication, sodomy, and …

Comment On Jana Singer's Alimony And Efficiency, Margaret F. Brinig

Journal Articles

I propose to make three comments on Professor Singer's article. First, I will present my views on the limitations of law and economics when applied to family law. Second, I will discuss why specialization between husbands and wives is not necessarily efficient, and perhaps not even the best use of law and economics in the study of the family. Finally, and perhaps most controversially, I will question whether there are gender differences that should impact alimony law.

Marriage And Opportunism, Margaret F. Brinig, Steven M. Crafton

Journal Articles

Spouse abuse is no longer a secret. It has become a thorn in America's conscience. Abuse even warranted a lengthy Supreme Court discussion in an opinion on abortion. It is certainly worth thinking about whether anything systemic caused the apparent outbreak of violence in the home. If there is a legal "fix" that would remove incentives to abuse, and therefore reduce the incidence of abuse at the margin, we should know about it.

It is the thesis of this article that increased abuse and other undesirable behavior is a natural consequence of the fact that in some states the marriage …

Bosnia, War Crimes, And Humanitarian Intervention, Jane Olson, Lois Fielding, Holly Burkhalter, Douglas Cassel Jr.

Journal Articles

This presentation examines the history of the laws of war and the effort made through international law to prevent war crimes and to punish those responsible for war crimes. It specifically looks as the Statute of the International Tribunal as a method in establishing the meaning of the crimes. It then evaluates the United States' policy of war crimes as applied in Bosnia and how it has affected its relations with NATO and the UN.

Over Forty Years In The On-Deck Circle: Congress And The Baseball Antitrust Exemption, Ed Edmonds

Journal Articles

"Congressional discussion of baseball's antitrust exemption stretches over forty years involving a significant number of legislative initiatives. Although the exemption is a judicial aberration without justification, the 103d Congress will probably be no more successful than its predecessors in altering its long-standing existence. The three bills under consideration are not specifically crafted to resolve the problems of the changes in the commissioner's office or the lack of an expansion franchise or the relocation of an existing franchise to the Tampa-St. Petersburg area. Much of the history of Congressional concern over baseball's antitrust status suggests that broad-based attempts to completely remove …

Using Trade To Enforce International Environmental Law: Implications For United States Law, Mary Ellen O'Connell

Journal Articles

The United States has enviable domestic environmental protection laws. However, good domestic environmental protection raises two concerns: effectiveness and competitiveness. In response to these two problems of environmental protection—effectiveness and competitiveness—members of Congress introduced over thirty bills in 1990 to amend U.S. trade laws. The bills were designed to either press other states to adopt environmental protection standards similar to the United States own or to at least minimize the competitive disadvantage for U.S. business inherent in U.S. regulations. The bills took one of two approaches: either they aimed at restricting access to U.S. markets for those states failing to …

Drug Testing/Use, Sandra S. Klein

Journal Articles

Drug testing is one of the most controversial of recent privacy issues. The bibliography which follows provides the reader with access to a wide range of discussion on this topic which is, or should be, of interest to everyone. Whether in our private lives, or on the job, drug use and drug testing will have an impact on every one of us.

The Right To Die As An Issue Of Privacy: A Selective Bibliography, Sandra S. Klein

Journal Articles

The issue of whether or not an individual has the right to choose when he or she will die, is a very controversial one for many reasons. Further complicating the issue is the question of who, if anyone, has the right to decide for those who are unable to choose for themselves. The bibliography which follows includes articles which discuss this topic from a right to privacy perspective, and should prove useful to those researchers who are new to the subject, as well as to those who are already familiar with the many complex issues involved.

Your Right To Privacy And Children's Rights/Family Law: A Selective Bibliography, Sandra S. Klein

Journal Articles

In a society increasingly aware of real or perceived social inequities, it is not surprising to note a greater concern for the rights of children and their families. It is also apparent that privacy issues are an integral subset of the larger social sphere of interests. Privacy aspects can be seen to be involved pervasively throughout the area of law dealing with children and families, especially in view of the fact that there is obvious potential for conflict not only between families and the state, but between children and the families of which they are a part

Response To Hittnger, Gerard V. Bradley

Journal Articles

No abstract provided.

Terrorism, Territorial Sovereignty, And The Forcible Apprehension Of International Criminals Abroad, Jimmy Gurule

Journal Articles

Examines current international law governing use of force extraterritorially; in light of the Alvarez-Machain case in which a Mexican national suspected of murder was forcibly extradited to stand trial in the US.

Response To Hittinger, Gerard V. Bradley

Journal Articles

No abstract provided.

The Legal Status Of The Refugee In The United States, Tang Thi Thanh Trai Le

Journal Articles

The Cold War era brought a shift in United States refugee policy from an emphasis on domestic policy to an emphasis on foreign policy. This meant that a large number of refugees could gain entry to the United States, but only if the refugees came from countries of foreign policy concern to the United States. The end of the Cold War and domestic economic stagnation have returned domestic and nationalistic factors to the forefront in the refugee debate. The case law and proposed legislation indicate that the United States may become less of a haven for refugees than before. Still, …

Cercla, Causation, And Responsibility, John C. Nagle

Journal Articles

The Comprehensive Environmental Response, Compensation, and Liability Act of 1980 ("CERCLA") and causation have enjoyed an uneasy coexistence. The tension between them results from the circumstances in which CERCLA became law. The Congress that enacted CERCLA considered two alternative liability schemes, both of which required that "polluters pay" for the cleanup of hazardous wastes. The House proposed imposing liability on those who "caused or contributed" to hazardous waste problems, while the Senate looked to specifically designated "responsible parties." The Senate prevailed. The consequences of that choice for the traditional tort concept of causation, like many other questions left unanswered in …

Celebrating The 125th Anniversary Of The Notre Dame Law School, Anthony J. Bellia

Journal Articles

This year marks the Notre Dame Law School's 125th year of continuous operation. This issue of the Notre Dame Law Review is our contribution to the anniversary celebration.

We asked a few of the Law School's many distinguished graduates to contribute their reflections on legal education at Notre Dame. They are Robert Michael Greene, Class of 1969; Peter T. King, Class of 1968; Patrick McCartan, Class of 1959; and Hon. Martha Vazquez, Class of 1978. We are grateful as well to Hon. Paul V. Niemeyer, Class of 1966, who prepared an essay for the issue.

Growing Up Good In Maycomb, Thomas L. Shaffer

Journal Articles

"I am the sum total of those who preceded me," Elie Wiesel wrote recently, "and so are you. Am I responsible for what all of them have done before I came into this world? No. But I am responsible for what I am doing with the memory of what they have done."

Jean Louise Finch (Scout), her brother Jeremy, their summer friend Dill, who comes to them from Meridian, Mississippi, and their school friends from the town and the farms around Maycomb grew up in memory and learned, or failed to learn, and accepted, or refused to accept, responsibility for …

Pilgrim Law, Robert E. Rodes

Journal Articles

A people's laws are deeply imbedded in its culture. They embody its collective moral reflection, its common understanding of the terms on which human beings are to live together, its customs, its historical experience, and its aspirations for the future. It is perhaps to be expected that Americans should enshrine their constitutional documents, build courthouses like temples, deploy their laws with ruthless practicality, and not take kindly to the suggestion that their laws are less practical than they think. Or that Italians should maintain a legal system like an old palazzo, with imposing staircases you can lose you. breath climbing, …

Listening For The Future In The Voices Of The Past: John T. Noonan, Jr. On Love And Power In Human History, M. Cathleen Kaveny

Journal Articles

A discussion of works on moral theology and canon law by Judge John T. Noonan Jr. (1926-2017) from the 1950s to the 1980s, which deal with the subjects of usury, contraception, marriage, slavery, bribery and religious liberty. Its focus is on Noonan’s normative commitments regarding epistemology, theological anthropology and the relation of love, justice and law. The article argues that Noonan was influenced by three core ideas, an epistemological view that moral knowledge is sought after and articulated in particular times and places, an anthropological view that argues the study of ethics, law, and theology must sensitively discern the core …

Liberalism And Natural Law Theory, John M. Finnis

Journal Articles

I shall argue, in the course of this lecture, that the title I gave myself is a bad one, one that sets a bad example. "Liberalism," like "conservatism" and "socialism," is too local, contingent and shifting a term to deserve a place in a general theory of society, politics, government and law. So I had better say at once which proposition or set of propositions I, on this occasion, was gesturing towards with the word "liberalism," out of all the many propositions, often conflicting, which have been called "liberal." What I had in mind was the thesis that government and …

A Process Theory Of Torts, Jay Tidmarsh

Journal Articles

This article is meant to reconcile two schools of intellectual thought regarding tort law, the conceptualist and the anti-conceptualist. It argues that torts must be understood as a system in perpetual process--forever indefinite and infinitely malleable in its precise theoretical, doctrinal and practical manifestations--yet ultimately bounded in its possibilities. It then defines the limits of torts law as a process that constantly regenerates the old face of tort theory, doctrine and practice into the new.

The Constitutional Law Of Abortion In Germany: Should Americans Pay Attention?, Donald P. Kommers

Journal Articles

What I plan to do here is to tell you the story of Germany's legal approach to abortion and offer some tentative conclusions about what we Americans might learn from the German experience. My story centers mainly on the constitutionality of efforts in Germany to remove legal restrictions on abortion. In the United States, the story has a different twist, for there it centers on the constitutionality of efforts to impose legal restrictions on abortion. Both stories are fascinating accounts of constitutional decisionmaking, revealing as much about the values of the two societies as about the role of judicial review …

The Effect Of Transaction Costs On The Market For Babies, Margaret F. Brinig

Journal Articles

Among the more controversial ideas advanced by prominent United States Circuit Court Judge and law professor Richard Posner is his suggestion that a market in babies would rectify many of the problems of the adoption system. His concept has, to say the least, provoked a tremendous reaction in various segments of American society. His critics proclaimed that sales of children would serve to demean the children and their mothers, relegating them to the status of mere commodities. Unscrupulous but wealthy parents might purchase children solely to abuse them. "Baby-selling" became a code word for the foolish extreme to which its …

Abortion/Reproductive Rights, Sandra S. Klein

Journal Articles

The issue of a woman's right to choose whether or not to continue with a pregnancy has proven to be complicated for many reasons, not the least of which is the implications for a person's right to do with her body as she sees fit. The bibliography that follows provides the researcher with an in depth look at this issue, with an emphasis on the privacy aspects.

Article 27 And Mexican Land Reform: The Legacy Of Zapata's Dream, James J. Kelly

Journal Articles

This student note takes an historical look at indigenous land tenure in Mexico and the role that limited alienability has played in sustaining indigenous agriculture from the time of the Aztecs up until the reforms enacted by the Salinas administration in Mexico in the early 1990's. As the piece was in edits, the Zapatista rebellion broke out and the text was amended to note the role that land tenure played in the uprising.

Making Way For A New Standard: Women Redefine The "Ideal Professor", Margaret F. Brinig

Journal Articles

Unfortunately for most women, the profile of an ideal law professor is a married man with a stay-at-home wife. A profile very like that of ideal workers in other legal settings.

It is common knowledge that women who teach law, including very able and committed women, do not achieve tenure and promotion at the same rate as their male counterparts. Although some institutions actually discriminate against women, in most, women lag behind because the committees and administrators deciding promotion and tenure view all applicants through the same lens. Their focus is driven by their law school's need to compete with …

'If I Knew Then What I Know Now': The Role Of After-Acquired Evidence In Employment Discrimination Cases: An Analysis Of Mckennon V. Nashville Banner, Barbara J. Fick

Journal Articles

This article previews the Supreme Court case McKennon v. Nashville Banner Publishing Company, 513 U.S. 352 (1995). The author expected the Court to address whether after acquired evidence of employee misconduct is a complete defense for an employer's termination decision which would otherwise violate the Age Discrimination in Employment Act or is it relevant only to the scope of the remedy afforded to an employee terminated in violation of the Act.

Professional Employee Or Supervisory Employee: Are Nurses Protected By The Nlra? An Analysis Of Nlrb V. Health Care & Retirement Corp., Barbara J. Fick

Journal Articles

This article previews the Supreme Court case NLRB v. Health Care and Retirement Corp. of America, 511 U.S. 571 (1994). The National Labor Relations Act protects employees' right to unionize and their actions aimed at improving working conditions. The Act does not, however, protect supervisory employees on the premise that employers deserve the undivided loyalty of their agents. In this case, the Court is asked to decide if nurses who direct the work of aides and orderlies are employees protected from discharge in their efforts to improve working conditions, or are supervisors who can be fired for such conduct.

Review Essay: Stephen Carter And Religion In America, Thomas L. Shaffer

Journal Articles

Reviewing Stephen L. Carter, The Culture of Disbelief: How American Law and Politics Trivialize Religious Devotion (1993).

Determining An Individual's Federal Income Tax Liability When The Tax Benefit Rule Applies: A Fifty-Year Checkup Brings A New Prescription For Calculating Gross, Adjusted Gross, And Taxable Incomes, Matthew J. Barrett

Journal Articles

The tax benefit rule should be described to indicate that it applies to credits and exclusions besides deductions, and deduction recoveries should be reported in the same location as was affected initially. The recovery should not affect gross income, for the purpose of tax equity. The recovery should rather affect either taxable income or adjusted gross income. The IRS and the courts should adopt this new description and principles.

On Religious Legal Ethics, Thomas L. Shaffer

Journal Articles

Perhaps as a result of the new and populous generation of lawyers, or as a holdover from the anti-war generation of law students, or maybe even as fall-out from Watergate, legal ethics has become a serious discipline.