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Articles 31 - 52 of 52
Full-Text Articles in Law
Comment, Traitors In Our Midst: Attorneys Who Inform On Their Own Clients, Aviva Abramovsky
Comment, Traitors In Our Midst: Attorneys Who Inform On Their Own Clients, Aviva Abramovsky
Journal Articles
No abstract provided.
Corrective Justice And The Revival Of Judicial Virtue, Mark C. Modak-Truran
Corrective Justice And The Revival Of Judicial Virtue, Mark C. Modak-Truran
Journal Articles
Judges must be wise. Sound judicial reasoning requires moral virtue. These sentiments about judging have been lost. They apparently belong to a bygone era. While many advocate self-restraint or prudence as judicial virtues, moral virtue has been conspicuously absent from the list. Except for avoiding obvious vices such as bribery, favoritism, prejudice, sloth, and arbitrariness, conventional wisdom maintains that being a good judge does not require being a good person. Even theorists sympathetic to a relationship between law and morality balk at making moral virtue a prerequisite of judicial decision making. Rather, many contend that judicial decision making is a …
Civil Rights And Human Rights: A Call For Closer Collaboration, Douglass Cassel
Civil Rights And Human Rights: A Call For Closer Collaboration, Douglass Cassel
Journal Articles
Those of you who may be familiar with my commentaries know that my usual topics are mass murderers overseas or U.S. foreign policy toward them. Today, however, I would like to focus on something closer to home-the history of and prospects for fruitful collaboration between the civil rights movement and the international human rights movement. My purpose is to encourage dialogue between civil rights and human rights lawyers. As a sometime civil rights lawyer myself, I am convinced that such a dialogue could be productive.
We might start by distinguishing human rights from civil rights. In customary American usage, the …
The Recusal Alternative To Campaign Finance Legislation, John C. Nagle
The Recusal Alternative To Campaign Finance Legislation, John C. Nagle
Journal Articles
Typical campaign finance proposals focus on limiting the amount of money that can be contributed to candidates and the amount of money that candidates can spend. This article suggests an alternative proposal that places no restrictions on contributions or spending, but rather targets the corrupting influence of contributions. Under the proposals, legislators would be required to recuse themselves from voting on issues directly affecting contributors. I contend that this proposal would prevent corruption and the appearance of corruption while remedying the first amendment objections to the regulation of money in campaigns.
States' Rights In The Twenty-First Century, Jay Tidmarsh, Mark Racicot, Robert Miller, Michael Greve
States' Rights In The Twenty-First Century, Jay Tidmarsh, Mark Racicot, Robert Miller, Michael Greve
Journal Articles
My name is Jim Schueller and I'm the Symposium Editor of the Law School Journal of Legislation and every two years we organize a symposium to discuss relevant issue of public policy and the topic this year is States Rights in the 21st Century.
Well, way back in the 18th century when the framers drafted the Constitution they created a unique system of governing where power was shared between the states which already existed and the newly created federal government. The framers in their day debated the proper allocation of power between these two governments and today, two hundred eleven …
Sex & Surveillance: Gender, Privacy & The Sexualization Of Power In Prison, Teresa A. Miller
Sex & Surveillance: Gender, Privacy & The Sexualization Of Power In Prison, Teresa A. Miller
Journal Articles
In prison, surveillance is power and power is sexualized. Sex and surveillance, therefore, are profoundly linked. Whereas numerous penal scholars from Bentham to Foucault have theorized the force inherent in the visual monitoring of prisoners, the sexualization of power and the relationship between sex and surveillance is more academically obscure. This article criticizes the failure of federal courts to consider the strong and complex relationship between sex and surveillance in analyzing the constitutionality of prison searches, specifically, cross-gender searches.
The analysis proceeds in four parts. Part One introduces the issues posed by sex and surveillance. Part Two describes the sexually …
Five Years After Beijing: A Report Card On Women’S Human Rights, Athena D. Mutua
Five Years After Beijing: A Report Card On Women’S Human Rights, Athena D. Mutua
Journal Articles
No abstract provided.
International Perspective, Douglass Cassel
International Perspective, Douglass Cassel
Journal Articles
I don't think it's accurate to say this panel has six experts on incarceration. I think we really have five experts and one dilettante. I know a bit about international human rights law. I am not an expert on prisons and I am overwhelmed by the expertise and the statistics that we've just received and about which I hope to learn a great deal more. So I apologize to you in advance for supplying nothing more than impressions of the international realities of incarceration. I will then skip quickly ahead to the law.
What O'Clock I Say: Juridical Epistemics And The Magisterium Of The Church, Robert E. Rodes
What O'Clock I Say: Juridical Epistemics And The Magisterium Of The Church, Robert E. Rodes
Journal Articles
Legal pronouncements to the effect that such and such is the case can be divided into three categories, which the paper calls normative, constitutive, and epistemic. The paper defines these three legal categories, explores examples of each of in the law of the state, and then examines church pronouncements under the same categories to see what light the analogy of secular law can shed on them. The Church's assertions of authority regarding faith and morals are epistemic in nature. Epistemic pronouncements by authority, whether in Church or state, are binding on anyone who is not better informed than the author, …
Formalism And Realism In Commerce Clause Jurisprudence, Barry Cushman
Formalism And Realism In Commerce Clause Jurisprudence, Barry Cushman
Journal Articles
This Article attempts a reconceptualization of developments in Commerce Clause jurisprudence between the Civil War and World War II by identifying ways in which that jurisprudence was structurally related to and accordingly deeply influenced by the categories of substantive due process and dormant Commerce Clause doctrine. Antecedent dormant Commerce Clause jurisprudence set the terms within which Commerce Clause doctrine was worked out; coordinate developments in substantive due process doctrine set limits upon the scope of Commerce Clause formulations and thus played a critical and underappreciated role in maintaining the federal equilibrium. The subsequent erosion of those due process limitations vastly …
A Comparative Constitutional Law Canon, Donald P. Kommers, John E. Finn
A Comparative Constitutional Law Canon, Donald P. Kommers, John E. Finn
Journal Articles
The article discusses what types of legal cases constitute a “canon” on American constitutional theory and comparative constitutional law, examples of case law that illustrate important developments in the two subjects. It describes the process taken by the article's authors to select a small sampling of 90 “canon” cases for their course book on American constitutional law, which is designed for the academic community and for undergraduate students enrolled in a traditional liberal arts curriculum.
On The Incoherence Of Legal Positivism, John M. Finnis
On The Incoherence Of Legal Positivism, John M. Finnis
Journal Articles
Legal positivism is an incoherent intellectual enterprise. It sets itself an explanatory task which it makes itself incapable of carrying through. In the result it offers its students purported and invalid derivations of ought from is.
In this brief Essay I note various features of legal positivism and its history, before trying to identify this incoherence at its heart. I do not mean to renege on my belief that reflections on law and legal theory are best carried forward without reference to unstable and parasitic academic categories, or labels, such as "positivism" (or "liberalism" or "conservatism," etc.). I use the …
What Is Twail?, Makau W. Mutua
What Is Twail?, Makau W. Mutua
Journal Articles
The piece seeks to conceptualize the insurgent movement in international law known as Third World Approaches to International Law. Driven by scholars from the Third World, TWAIL rejects the traditional tenets and assumptions of traditional international law and argues for a re-imagination of the law of nations to purge it of racial and hegemonic precepts and biases to create a truly universal corpus that embraces inclusivity and empowerment. The movement turns away from the imperialist and colonialist foundation of international law. It argues that international law must be devoid of oppression, exploitation, and domination. The piece is among the first …
Taking Pierce Seriously: The Family, Religious Education, And Harm To Children, Richard W. Garnett
Taking Pierce Seriously: The Family, Religious Education, And Harm To Children, Richard W. Garnett
Journal Articles
Many States exempt religious parents from prosecution, or limit their exposure to criminal liability, when their failure to seek medical care for their sick or injured children is motivated by religious belief. This paper explores the question what, if anything, the debate about these exemptions says about the state's authority to override parents' decisions about education, particularly religious education. If we accept, for example, that the state may in some cases require medical treatment for a child, over her parents' objections, to avoid serious injury or death, should it follow that it may regulate, or even forbid, a child's religious …
A Dialogic Defense Of Alden, Jay Tidmarsh
A Dialogic Defense Of Alden, Jay Tidmarsh
Journal Articles
The opening paragraphs of the essay:
I find myself in the odd position of arguing that Alden v. Maine' is right, or at least not wrong. Do not misunderstand-I do not like the result in Alden any more than the next guy. But to not like the result and to argue that Alden is wrong as a matter of constitutional principle are two different matters. I am willing to argue that Alden is consistent with, albeit not compelled by, constitutional principle.
Implicit in the last sentence is the assumption that, had Alden been decided in accordance with Justice Souter's rather …
The Primacy Of Political Actors In Accommodation Of Religion, William K. Kelley
The Primacy Of Political Actors In Accommodation Of Religion, William K. Kelley
Journal Articles
This article focuses on the relationship between freedom of religion and the norm against non-establishment of religion in the context of government efforts to accommodate religious practices. It analyzes First Amendment doctrine in this area, and concludes that the Supreme Court has consistently been generous in permitting accommodations of religion when they are the product of judicial decisions; in other words, at least until recently the Court has been open to mandatory accommodations so long as they are ordered by judges. By contrast, the Court has long been suspicious of - and far from generous in permitting - accommodations as …
Natural Law, Marriage, And The Thought Of Karol Wojtyla, John J. Coughlin
Natural Law, Marriage, And The Thought Of Karol Wojtyla, John J. Coughlin
Journal Articles
This Article examines the loss of the natural law perspective from legal theory and the movement towards liberal theory. The Article continues by analyzing two features of the natural law tradition as described in the philosophical writings of Karol Wojtyla. The first feature concerns marriage and family as the fundamental human community. The second considers marriage as a virtuous relationship. The Article concludes with practical suggestions for the legal profession and legal education with regard to counseling clients about marriage.
The Basic Law: A Fifty Year Assessment, Donald P. Kommers
The Basic Law: A Fifty Year Assessment, Donald P. Kommers
Journal Articles
In 1949 the new German Basic Law raised many questions. Could a newly minted constitution-mere words on paper-breathe new life into a people devastated by war? Would it serve as a stable framework of government? Would it promote respect for human rights and popular government? Would it foster internal political unity? Half a century later all these questions can be answered in the affirmative. The Basic Law is one of the world’s most respected and imitated constitutions and it has emerged as the vital center of Germany's constitutional culture. It is invoked repeatedly in parliamentary debates and resorted to in …
A Tribute To A Friend And Colleague: Frank Beytagh, Fernand N. Dutile
A Tribute To A Friend And Colleague: Frank Beytagh, Fernand N. Dutile
Journal Articles
I am delighted to say a few words on this wonderful occasion honoring Professor Francis X. Beytagh. He and I became colleagues at Notre Dame in 1971. In twenty-nine years of friendship, Frank and Diane have shared with Brigid and me much joy—and significant sadness. Today's ceremony brims with joy, and Brigid and I are so pleased that we could be here to share joy yet again with Frank and Diane.
His intellectual depth and practical wisdom find consistent expression through his indefatigable devotion to mission. I have known many people with some of these qualities, but it is rare …
A Comparison Of The Administrative Law Of The Catholic Church And The United States, John J. Coughlin
A Comparison Of The Administrative Law Of The Catholic Church And The United States, John J. Coughlin
Journal Articles
Some years ago, an international symposium of jurists described administrative law as encompassing "the entire range of action by government with respect to the citizen or by the citizen with respect to the government, except for those matters dealt with by the criminal law, and those left to private civil litigation where the government's only participation is in furnishing an impartial tribunal with the power of enforcement."
The broad parameters of the concept of administrative law attest to its importance in any legal system. Indeed, for at least the past fifty years, comparative legal scholars have focused on diverse national …
The Proliferation Of International Courts And Tribunals: International Adjudication In Ascendance, Roger P. Alford
The Proliferation Of International Courts And Tribunals: International Adjudication In Ascendance, Roger P. Alford
Journal Articles
While there has been a significant focus on a few international tribunals, there have been insufficient efforts to compare and contrast the various courts and tribunals. Even a cursory comparison of these tribunals reveals that there are many unanswered questions regarding the interrelationship of these courts and tribunals and, more disturbing, a profound lack of attention to the collective impact these international tribunals are having on the field of international law. That is changing, as is evidenced by the new Project on International Courts and Tribunals at New York University School of Law, but we as an international legal community …
Nuclear Weapons, Lethal Injection, And American Catholics: Faith Confronting American Civil Religion, Thomas L. Shaffer
Nuclear Weapons, Lethal Injection, And American Catholics: Faith Confronting American Civil Religion, Thomas L. Shaffer
Journal Articles
But, still, honor is important among us. "He was an honorable man" is still a moving thing to say, at a (man's) funeral. The notion, and the liturgy that invokes the notion, show us believers that civil religion has a hold on us, and that we need a place where we can sit down together and think things out.2 6 This argument of mine needs to get beneath simple contrasts between biblical faith and civil religion. We believers need to reason together, plopped down as we are in the middle of the present. We believers include naval officers and lawyers …