Law Commons^™

The Liberty Of The Church: Source, Scope And Scandal, Patrick Mckinley Brennan

Working Paper Series

This article was presented at a conference, and is part of a symposium, on "The Freedom of the Church in the Modern Era." The article argues that the liberty of the Church, libertas Ecclesiae, is not a mere metaphor, pace the views of some other contributions to the conference and symposium and of the mentality mostly prevailing over the last five hundred years. The argument is that the Church and her directly God-given rights are ontologically irreducible in a way that the rights of, say, the state of California or even of the United States are not. Based on a …

Resisting The Grand Coalition In Favor Of The Status Quo By Giving Full Scope To The Libertas Ecclesiae, Patrick Mckinley Brennan

Working Paper Series

This paper argues that questions about "religious freedom" must be subordinated to the fundamental principle of the liberty of the Church, libertas Ecclesiae. The First Amendment's agnosticism with respect to the liberty of the Church is not ultimately normative. Catholics and others who merely seek religious "accommodation," as with the HHS mandate, for example, are agents of a status quo that illegitimately has comfortable self-preservation as its highest value. It is Catholic doctrine that "creation was for the sake of the Church," not for the sake of, say, religious freedom. The paper argues that the contingent constitution of …

“Religious Freedom,” The Individual Mandate, And Gifts: On Why The Church Is Not A Bomb Shelter, Patrick Mckinley Brennan

Working Paper Series

The Health and Human Services' regulatory requirement that all but a narrow set of "religious" employers provide contraceptives to employees is an example of what Robert Post and Nancy Rosenblum refer to as a growing "congruence" between civil society's values and the state's legally enacted policy. Catholics and many others have resisted the HHS requirement on the ground that it violates "religious freedom." They ask (in the words of Cardinal Dolan) to be "left alone" by the state. But the argument to be "left alone" overlooks or suppresses the fact that the Catholic Church understands that it is its role …

The Mighty Work Of Making Nations Happy: A Response To James Davison Hunter, Patrick Mckinley Brennan

Working Paper Series

This article is an invited response to James Davison Hunter’s much-discussed book To Change the World: The Irony, Tragedy, and Possibility of Christianity in the Late Modern World (Oxford University Press, 2010). Hunter, a sociologist at UVA and a believing Protestant, claims that law’s capacity to contribute to social change is “mostly illusory” and that Christians, therefore, should practice “faithful presence” in the public square rather than seek to influence law directly. My response is that it is, in fact, law’s stunning ability to alter and limit available choices that makes it an object of deservedly fierce contest. The wild …

Subsidiarity In The Tradition Of Catholic Social Doctrine, Patrick Mckinley Brennan

Working Paper Series

This chapter is an invited contribution to the first English-language comparative study of subsidiarity, M. Evans and A. Zimmerman (eds.), Subsidiarity in Comparative Perspective (forthcoming Springer, 2013). The concept of subsidiarity does work in many and varied legal contexts today, but the concept originated in Catholic social doctrine. The Catholic understanding of subsidiarity (or subsidiary function) is the subject of this chapter. Subsidiarity is often described as a norm calling for the devolution of power or for performing social functions at the lowest possible level. In Catholic social doctrine, it is neither. Subsidiarity is the fixed and immovable ontological principle …

The Unsigned United Nations Migrant Worker Rights Convention: An Overlooked Opportunity To Change The Brown Collar Migration Paradigm, Beth Lyon

Working Paper Series

The United Nations Convention on the Protection of the Rights of All Migrant Workers and Members of their Families (Migrant Worker Convention or Convention) is one of the United Nations' nine core human rights treaties. The United States has neither signed nor ratified the treaty. Despite various reports and articles assessing potential ratification of the Convention by European and other countries, and an even more robust literature examining potential U.S. ratification of other UN core human rights treaties, there has been no examination of the potential for U.S. ratification of this Convention.

The Convention is the most comprehensive global attempt …

Behind The Red Curtain: Environmental Concerns And The End Of Communism, Joseph W. Dellapenna

Working Paper Series

Twenty years ago, the edifice of Communism collapsed constructed over the preceding three-quarters of a century from Berlin to Vladivostok and from Murmansk to Addis Ababa. Suddenly, between 1989 and 1991, all of the Communist states in Europe collapsed, as well as some Communist states in Asia and Africa, while most of the surviving Communist states largely abandoned Communist economic systems. While the crumbling edifice still hangs on, at least in vestigial forms, in some parts of the world, the collapse of the wall serves as an apt metaphor for the destruction of that edifice. The two years between 1989 …

“What’S The Matter With You Catholics?” Soundings In Catholic Social Thought: Traditions In Turmoil. By Mary Ann Glendon, Patrick Mckinley Brennan

Working Paper Series

This review essay of Mary Ann Glendon's Traditions in Turmoil (2006) explores such topics as tradition, moral discourse, human rights, subsidiarity, natural law, the common good, civil society, and constitutional and statutory interpretation. In doing so, it provides an introduction both to Catholic social thought and to the thought of Bernard Lonergan.

“We Are At War And You Should Not Bother The President”: The Suffrage Pickets And Freedom Of Speech During World War I, Catherine J. Lanctot

Working Paper Series

The story of Alice Paul’s National Woman’s Party and its 1917 picketing campaign onbehalf of woman suffrage is almost unknown in legal circles. Yet the suffrage pickets were among the earliest victims of the suppression of dissent that accompanied the entry of the United States into World War I. Nearly forty years before the modern civil rights movement brought the concept of nonviolent civil disobedience to the forefront of American political discourse, the NWP conducted a direct action campaign at the very doorstep of the President of the United States, and they did so during a time of war.

In …

Market Triumphalism, Electoral Pathologies, And The Abiding Wisdom Of First Amendment Access Rights, Gregory P. Magarian

Working Paper Series

Forty years ago, Professor Jerome Barron made the classic case that the First Amendment requires not merely protection of speech against government interference but provision of access to the means of mass communication. The Supreme Court in the ensuing decades has largely rejected Barron’s approach. In this article, Professor Magarian defends Barron’s case for access rights against the two theoretical critiques that have underwritten its doctrinal rejection. The libertarian critique attacks the normative underpinnings of access rights, maintaining that the First Amendment insulates market-driven distributions of expressive opportunities. Professor Magarian demonstrates that politically progressive and conservative libertarian critics of access …

Rules Are Made To Be Broken: How The Process Of Expedited Removal Fails Asylum Seekers, Michele R. Pistone, John J. Hoeffner Esq.

Working Paper Series

Immigration inspectors are authorized to deport persons who arrive at U.S. ports without valid travel documents. This process, which usually occurs within 48 hours and does not allow for judicial review, is called expedited removal. This article begins by summarizing the findings of the few studies allowed access to the process. The authors extrapolate from the studies to demonstrate that thousands of genuine asylum seekers have erroneously been deported via expedited removal. The greatest cause of erroneous deportation is a failure by the agency responsible for the process, Customs and Border Protection (CBP), to follow its own rules. The heart …

Considering Standing, Sincerity, And Antidiscrimination, Chapin C. Cody

Working Paper Series

This Article will establish that an unrecognized norm, the “norm of sincerity,” is an implicit factor in the standing analysis in a certain class of equal protection cases. That class of cases includes equal protection claims where 1) courts have applied the “able and ready to compete” test to determine a plaintiff’s injury in fact, and where 2) the plaintiff has complained about discriminatory access to limited government resources. In those cases, a plaintiff cannot demonstrate injury in fact sufficient to meet Article III standing unless she shows that she sincerely intends to use the benefits at stake in the …

The W Visa: A Legislative Proposal For Female And Child Refugees Trapped In A Post-9/11 World, Marisa S. Cianciarulo

Working Paper Series

This article addresses an urgent humanitarian crisis affecting unaccompanied or abused refugee children and widowed, divorced, abandoned or abused female heads of refugee households. Such women and children suffer the consequences of the post-9/11 U.S. refugee resettlement backlog more severely than the general refugee population. They are far more at risk of life-threatening harm such as trafficking, sexual exploitation and rape. Moreover, they are far less likely to present a threat to U.S. national security than many people who are able to secure visas to the United States quickly and with fewer background checks. Despite their vulnerability and lack of …

Discourse In Development: Viewing The United Nations Committee On Economic, Social And Cultural Rights Through The Post-Colonial Lens, Beth Lyon

Working Paper Series

This article uses post-colonial theory to examine the cluster of international human rights known as economic, social and cultural rights. The article surveys the jurisprudence of the UN Committee on Economic, Social and Cultural Rights, making it relevant for scholars of international human rights as well as post-colonial theory.

Traditionally, international human rights divide into two branches: 1) civil and political rights, and 2) economic, social and cultural rights (ESCRs). ESCRs were virtually ignored during the cold war era, but they now receive expanded attention at the international and regional levels. The creation of the UN Committee on Economic, Social …