Law Commons^™

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, …

Response To Hittinger, Gerard V. Bradley

Journal Articles

No abstract provided.

Response To Hittnger, Gerard V. Bradley

Journal Articles

No abstract provided.

Sexual Freedom And Your Right To Privacy: A Selective Bibliography, Sandra S. Klein

Journal Articles

Like so many other privacy issues, concern over sexual freedom took on more than intellectual overtones with the advent of greater public discussion. As courts and government appeared to enter the most private domain of all, the bedroom, the public's interest in privacy issues dealing with sexual freedom increased dramatically. This bibliography should serve as a valuable tool for researchers who have an interest in this highly controversial area of social concern.

The Church And The Law, Thomas L. Shaffer

Journal Articles

The image I want to use to talk about the church in the state, from a Christian lawyer's point of view, is in two of the novels of the late theological storyteller Walker Percy. We Percy readers first saw the image in Love in the Ruins. Percy's sub-title for that novel was "The Adventures of a Bad Catholic at a Time Near the End of the World." His setting is the not-too-distant future in North America. Social climate and civil discourse are even worse than they are now. Percy's central figure, Dr. Thomas More, the bad Catholic, and a few …

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 …

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.

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.

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.

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 …

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.

Law, Morality, And "Sexual Orientation", John M. Finnis

Journal Articles

During the past thirty years there has emerged in Europe a standard form of legal regulation of sexual conduct. This standard form or scheme, which I shall call the "standard modem [European] position," is accepted by the European Court of Human Rights and the European Commission of Human Rights (the two supra-national judicial and quasijudicial institutions of the European Convention for the Protection of Human Rights and Fundamental Freedoms (1950), to which almost all European states are party, whether or not they are also party to the European [Economic] Community now known as the European Union). The standard modem European …

The Federal Constitutional Court In The German Political System, Donald P. Kommers

Journal Articles

The Federal Constitutional Court is a major policy-making institution in Germany's system of government. Within the space of four decades (1951- 1991), this tribunal has evolved into the most active and powerful constitutional court in Europe. Its pivotal character in the German political system sterns from its role as a judicial lawmaking body created for the specific purpose of deciding constitutional disputes under the Basic Law.1 In deciding such disputes-that is, in interpreting the language and spirit of the Basic Law-the Constitutional Court has influenced the shape of Germany's political landscape, reaching deep into the heart of the existing state, …

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 …

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 …

Finite Horizons: The American Family, Margaret F. Brinig

Journal Articles

In the summer of 1992, while I was reading and thinking about Martha Minow's latest book, I was struck with my double role as a responsible adult. Vacationing in the north woods of Wisconsin with my mother, I suddenly needed to care for her as well as my own small children. Generational connections, important before, swelled hugely in crisis. As I caught my breath between hospital runs and kids' activities, I was thankful that I had received so much from my parents during my childhood. And I resolved to rethink the relationships between parents and children, adults and elderly.

Policy …

Employee/Employer, Sandra S. Klein

Journal Articles

The issue of privacy as it relates to employment in general is one of great concern, both to employers and employees. Both groups are faced with increasing threats to their individual or corporate privacy. Given that such threats carry personal, economic and social consequences, it is not surprising that many people are concerned. The bibliography which follows provides the reader with many sources which should prove useful to those well-versed in the subject, as well as to those who are looking at this issue for the first time.

The Copyrightability Of Nonliteral Elements Of Computer Programs, Julian Velasco

Journal Articles

The goal of copyright law is "[t]o promote the Progress of Science and Useful Arts." It is premised on the assumption that "encourag[ing] . . . individual effort by personal gain is the best way to advance public welfare through the talents of authors . . ." In order to "promote progress," however, copyright law must respond to changes in technology.

One issue that has been problematic for the courts is whether and to what extent the nonliteral elements of computer programs are copyrightable. Nonliteral elements are aspects of the computer program other than the written code itself. Although it …

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 …

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, …

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.

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

Depravity Thrice Removed: Using The 'Heinous, Cruel, Or Depraved' Factor To Aggravate Convictions Of Nontriggermen Accomplices In Capital Cases, Richard W. Garnett

Journal Articles

In Tison v. Arizona, the Tison brothers' appeal from their death sentences, the U.S. Supreme Court held that a nontriggerman convicted of first-degree felony murder could constitutionally be executed if he was a major participant in the crime and if he exhibited a reckless disregard for human life. This decision blurred the bright-line rule announced just five years earlier in Enmund v. Florida, which limited the death penalty to defendants who kill, attempt to kill, or at least intend to kill. Tison thus dramatically increased the exposure of nontriggermen to capital punishment, undercutting the death penalty's limited purpose of identifying …

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.

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.

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 …

'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.

Cutting The Bill For Commonwealth Edison's Nuclear Power Plants: Important Gains For Illinois Public Utility Customers, Robert Jones

Journal Articles

In 1993 Commonwealth Edison, Illinois’s largest electric utility agreed to pay its customers $1.3 billion, the biggest refund issued by a utility in United States history, and to reduce its electricity rates by $339 million per year. This refund and rate reduction settled a decade-long series of cases with consumer advocates over the billions of dollars Edison spent constructing five nuclear power plants. The litigation not only offered relief to Edison customers, who paid some of the highest rates in the country. It dramatically changed Illinois law, giving public utility companies strong incentive to generate electricity through less costly and …

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.