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Articles 1 - 24 of 24
Full-Text Articles in Law
The Conservative-Libertarian Turn In First Amendment Jurisprudence, Steven J. Heyman
The Conservative-Libertarian Turn In First Amendment Jurisprudence, Steven J. Heyman
All Faculty Scholarship
Conservative constitutional jurisprudence in the United States has an important libertarian dimension. In recent years, a conservative majority of the Supreme Court has strengthened the constitutional protections for property rights, recognized an individual right to own firearms, imposed limits on the welfare state and the powers of the federal government, cut back on affirmative action, and held that closely held corporations have a right to religious liberty that permits them to deny contraceptive coverage to their female employees. This libertarian streak also can be seen in decisions on freedom of speech and association. In several leading cases, conservative judges have …
The Educational Autonomy Of Perfectionist Religious Groups In A Liberal State, Mark D. Rosen
The Educational Autonomy Of Perfectionist Religious Groups In A Liberal State, Mark D. Rosen
All Faculty Scholarship
This Article draws upon, but reworks, John Rawls’ framework from Political Liberalism to determine the degree of educational autonomy that illiberal perfectionist religious groups ought to enjoy in a liberal state. I start by arguing that Rawls mistakenly concludes that political liberalism flatly cannot accommodate Perfectionists, and that his misstep is attributable to two errors: (1) Rawls utilizes an overly restrictive “political conception of the person” in determining who participates in the original position, and (2) Rawls overlooks the possibility of a “federalist” basic political structure that can afford significant political autonomy to different groups within a single country. With …
Property And Transitional Justice, Bernadette Atuahene
Property And Transitional Justice, Bernadette Atuahene
All Faculty Scholarship
Transitional justice is the study of those mechanisms employed by communities, states and the international community to deal with a legacy of systematic human rights abuses and authoritarianism in order to promote social reconstruction. There is a well developed transitional justice literature on how states can deal with past violations of civil and political rights, which discusses the value of truth commissions, and international and domestic prosecutions. The transitional justice literature on how to deal with past violations of property rights, however, is significantly less developed. The goal of this essay is to begin an important conversation about how transitional …
Bionormativity And The Construction Of Parenthood, Katharine K. Baker
Bionormativity And The Construction Of Parenthood, Katharine K. Baker
Katharine K. Baker
This piece explores the relationship between legal and biological parenthood. It examines how neither history, nor evolutionary biology nor moral philosophy dictate a legal regime in which parenthood must be based on biological connection, but that attraction to a biological (or “bionormative”) regime remains strong. In explaining why, it suggests that much of what attracts people to bionormativity is not biology itself, but the way in which a biological regime constructs parenthood as a private, exclusive and binary enterprise. It is these ancillary qualities of bionormativity that people may care the most about. Today, a variety of forces put pressure …
From The Dead Hand To The Living Dead: The Conundrum Of Charitable Donor Standing (Symposium), Evelyn Brody
From The Dead Hand To The Living Dead: The Conundrum Of Charitable Donor Standing (Symposium), Evelyn Brody
Evelyn Brody
No abstract provided.
Supporting Children, Balancing Lives, Katharine K. Baker
Supporting Children, Balancing Lives, Katharine K. Baker
Katharine K. Baker
This paper examines how U.S. child support policy validates traditional divisions of labor and thereby hinders individual attempts to achieve an acceptable work/family balance. It argues that by using the household as the relevant unit of measurement for child support purposes, family law doctrine legitimates the specialization contracts that arise within households. These specialization contracts, used most extensively in wealthy, elite households, undermine attempts to distribute caretaking and provider roles more equally between parents. The article suggest that by dispensing with the household as the relevant unit of measurement and treating all parents individually, each with a responsibility to caretake …
The Charity In Bankruptcy And Ghosts Of Donors Past, Present, And Future (Symposium), Evelyn Brody
The Charity In Bankruptcy And Ghosts Of Donors Past, Present, And Future (Symposium), Evelyn Brody
Evelyn Brody
The bankruptcy of a charity represents the clash of two policy regimes: charity law's willingness to preserve assets for the public purpose determined by the donor as against bankruptcy law's desire to maximize assets for distribution to creditors. As a general rule, assets will be distributed to creditors; as the courts say, 'a man must be just before he is generous.' However, when a charitable donee goes out of existence or otherwise becomes unable to perform a charitable trust or restricted gift, the courts will try to identify those charitable assets that are restricted in such a manner that they …
Rights, Rationality, And The Preemption Of Reasons, Richard Warner
Rights, Rationality, And The Preemption Of Reasons, Richard Warner
All Faculty Scholarship
No abstract provided.
Whose Public?: Parochialism And Paternalism In State Charity Law Enforcement, Evelyn Brody
Whose Public?: Parochialism And Paternalism In State Charity Law Enforcement, Evelyn Brody
Evelyn Brody
This piece was inspired by the increasing tendency of State attorneys general – backed up by courts and legislatures – to effectively confiscate the assets of wealthy nonprofits through overreaching enforcement actions. The article develops a legal framework for ascertaining the proper State role. It reviews many case studies including, most notoriously, the thwarted diversification of the Milton Hershey School Trust out of Hershey Foods Corporation (an investment worth over $5 billion) – thereby preserving the local operations of a publicly traded company. While few state attorneys general have the funding and inclination to engage in aggressive charity enforcement, the …
Bargaining Or Biology? The History And Future Of Paternity Law And Parental Status, Katharine K. Baker
Bargaining Or Biology? The History And Future Of Paternity Law And Parental Status, Katharine K. Baker
Katharine K. Baker
In practice, paternity rulings are remarkably unimportant. With the exception of state welfare authorities pursuing mostly impoverished biological fathers, few paternity actions are brought, few mothers want to bring them and (even with state-sponsored pursuit) very few dollars get transferred to children as a result of them. In theory, however, paternity judgments are very and perniciously important because they keep alive the biological fatherhood ideal, an ideal that has never been reflected in law or fact and that is inconsistent with the emerging law of parental rights and responsibilities. This article challenges the biological fatherhood ideal and suggests that contract, …
Juries, Justice And Multiculturalism, Nancy S. Marder
Juries, Justice And Multiculturalism, Nancy S. Marder
All Faculty Scholarship
No abstract provided.
Dialectics And Domestic Abuse (Reviewing Elizabeth M. Schneider, Battered Women And Feminist Lawmaking (2000)), Katharine K. Baker
Dialectics And Domestic Abuse (Reviewing Elizabeth M. Schneider, Battered Women And Feminist Lawmaking (2000)), Katharine K. Baker
Katharine K. Baker
No abstract provided.
The Principles Of Justice, Richard W. Wright
The Principles Of Justice, Richard W. Wright
All Faculty Scholarship
No abstract provided.
The Principles Of Justice, In Symposium, Propter Honoris Respectum: John Finnis, Richard W. Wright
The Principles Of Justice, In Symposium, Propter Honoris Respectum: John Finnis, Richard W. Wright
All Faculty Scholarship
Many theorists claim that justice is a question-begging concept that has no inherent substantive content. They point to disagreements among justice theorists themselves about basic aspects of the justice theory, such as the nature of corrective justice and the distinction between it and distributive justice, as even further reason to dismiss the concept of justice or to fill it with their preferred theoretical content. Yet most persons perceive that the concept of justice is not an empty shell. Since ancient times it has been thought to encompass not merely a formal equality (treating like cases alike), but also a substantive …
Biology For Feminists, Katharine K. Baker
Does Incommensurability Matter? Incommensurability And Public Policy, Richard Warner
Does Incommensurability Matter? Incommensurability And Public Policy, Richard Warner
All Faculty Scholarship
No abstract provided.
Text, Context And The Problem With Rape, Katharine K. Baker
Text, Context And The Problem With Rape, Katharine K. Baker
Katharine K. Baker
No abstract provided.
Once A Rapist? Motivational Evidence And Relevancy In Rape Law, Katharine K. Baker
Once A Rapist? Motivational Evidence And Relevancy In Rape Law, Katharine K. Baker
Katharine K. Baker
Feminist scholars and activists have long sought to reform rape laws and evidence rules in order to increase the number of successful rape prosecutions in the United States. In partial response to these efforts, and in an effort to decrease crime, the 104th Congress amended the Federal Rules of Evidence by adding Rule 413, which makes prior acts of sexual assault by alleged rapists admissible in criminal sexual assault cases. The new Rule 413 was meant to level the legal playing field between rapists and their accusers. Professor Baker argues that the new Rule is misguided because it fails to …
Taking Care Of Our Daughters, A Book Review Of Martha Fineman, The Neutered Mother, The Sexual Family And Other Twentieth Century Tragedies, Katharine K. Baker
Taking Care Of Our Daughters, A Book Review Of Martha Fineman, The Neutered Mother, The Sexual Family And Other Twentieth Century Tragedies, Katharine K. Baker
Katharine K. Baker
No abstract provided.
Impossible Comparisons And Rational Choice Theory, Richard Warner
Impossible Comparisons And Rational Choice Theory, Richard Warner
All Faculty Scholarship
No abstract provided.
Excluding Reasons: Impossible Comparisons And The Law, Richard Warner
Excluding Reasons: Impossible Comparisons And The Law, Richard Warner
All Faculty Scholarship
No abstract provided.
Why Pragmatism? The Puzzling Place Of Pragmatism In Critical Theory, Richard Warner
Why Pragmatism? The Puzzling Place Of Pragmatism In Critical Theory, Richard Warner
All Faculty Scholarship
No abstract provided.
Privatizing Justice: A Jurisprudential Perspective On Labor And Employment Arbitration From The Steelworkers Trilogy To Gilmer (With R. Ladenson), Martin H. Malin
Privatizing Justice: A Jurisprudential Perspective On Labor And Employment Arbitration From The Steelworkers Trilogy To Gilmer (With R. Ladenson), Martin H. Malin
All Faculty Scholarship
No abstract provided.
Incommensurability As A Jurisprudential Puzzle, Richard Warner
Incommensurability As A Jurisprudential Puzzle, Richard Warner
All Faculty Scholarship
No abstract provided.