Digital Commons Network^™

Capitalism & Jurisprudence, Paulo Barrozo

Law and Contemporary Problems

No abstract provided.

Papal Jurisprudence, Chad Marzen, William Woodyard

Notre Dame Journal of International & Comparative Law

No abstract provided.

Zero Tolerance Or Strong Cultural Diversity: The Hard Case Of Female Genital Surgery, James M. Donovan, Christiane Canant

Law Faculty Scholarly Articles

This article applies a thesis favoring strong cultural diversity to defend a subject-centered policy regarding female genital surgeries (FGS). That idea posits that cultural variation holds an intrinsic value that should be presumptively respected when setting policy and creating law. Correlatively, cultural homogenization, especially by force, should be resisted. 

Taking as a starting point the recent celebration of the United Nation’s Day of Zero-Tolerance for Female Genital Mutilation, the paper reviews the context of FGS practices in various societies and critiques the inconsistencies of U.N. arguments to advance its goal of total elimination by 2030. Especially problematic for the U.N. …

Zero Tolerance Or Strong Cultural Diversity: The Hard Case Of Female Genital Surgery, James M. Donovan, Christiane Canant

Emory International Law Review

This article applies a thesis favoring strong cultural diversity to defend a subject-centered policy regarding female genital surgeries (FGS). That idea posits that cultural variation holds an intrinsic value that should be presumptively respected when setting policy and creating law. Correlatively, cultural homogenization, especially by force, should be resisted.

Taking as a starting point the recent celebration of the United Nation’s Day of Zero-Tolerance for Female Genital Mutilation, the paper reviews the context of FGS practices in various societies and critiques the inconsistencies of U.N. arguments to advance its goal of total elimination by 2030. Especially problematic for the U.N. …

Servi Dei: Prosecutors & The Common Good, Zachary A. Chin

Student Works

No abstract provided.

A Comparison Of Catholic Moral Theology And The American Criminal System, Paige Rufolo

Student Works

No abstract provided.

Under What Circumstances Is “Caste” Likely To Be Useful As An Analytic Concept (And Should We Care)?, Sanford Levinson, Robert L. Tsai

Maryland Law Review

No abstract provided.

Prophetic Law In Indonesia And South Africa: A Comparative Constitutional Study On The Integration Of Religious Law Into Legal Systems, Kelik Wardiono, Arief Budiono, Saepul Rochman, Jan Alizea Sybelle

Padjadjaran Jurnal Ilmu Hukum (Journal of Law)

Prophetic law is an ancient legal framework rooted in divine commandments, such as God's Ten Commandments to Moses, as well as Christian and Islamic laws, nowadays commonly referred to as religious law. The meaning of prophetic law is religious law from Abrahamic religions. Particularly, Christian law has significantly influenced Western civilization, with its impact extending to regions like South Africa besides customary law. Similarly, Islamic law has also left a lasting impression on Indonesia's legal system besides customary law. This article employs a comparative law method to analyze the constitutions of Indonesia and South Africa, focusing on the legalization of …

Ndls Communicator: Week Of 04.07.25, Notre Dame Law School

NDLS Communicator

The Latest News

• Law school groups help launch website to shine light on religious discrimination across the United States
• Notre Dame Law School students compete in International Moot Court on Law and Religion in Rome
• ND Law Global Human Rights Clinic research collaboration with International Justice Mission on forced labor and human trafficking in the Philippines
• ND Law's Black Law Students Association leads workshop and shadow day for ND TRIO program

Faculty Briefs

• Jared DeFelice and Robert Stone Curl, students in the Notre Dame Law School Eviction Clinic, traveled to Indianapolis with David Pruitt (Clinical Director) to testify in support …

Review Of Pope John’S Pacem In Terris And The Call For Global Governance, Thomas Massaro

The Journal of Social Encounters

No abstract provided.

Dignitatis Humanae, Francis J. Beckwith

Loyola University Chicago Law Journal

Sixty years ago the Second Vatican Council issued the document Dignitatis Humanae, a declaration on religious freedom. At the time it was considered to be the Catholic Church's most significant concession to the modern world, though the Council argued that the declaration was, given the political and religious realities at the time, a legitimate doctrinal development rooted in the Church's most ancient teachings. Its defense of religious liberty relied on widely held and uncontroversial beliefs about human nature, the common good, and the meaning of religion. But since the beginning of the 21st century those beliefs have been challenged …

An Eye For An Eye Makes A Vigilant Society, Liam C. Preyer

Capstone Showcase

Vigilantism is one of the oldest practices of mankind; for as long as there have been moral and legal laws to govern us and live by, there have been individuals who have sought justice outside these systems. Vigilantism is the response to failures in the justice system, and in the United States in particular, we have seen examples from the Western Frontier to the modern-day digital landscape. This paper will explore the nature of vigilante justice through historical, psychological, media-driven, legal, and digital lenses. We will explore how cultural narratives, media influences, government actions, and psychological motivations have shaped the …

Under What Circumstances Is "Caste" Likely To Be Useful As An Analytic Concept (And Should We Care)?, Sanford V. Levinson, Robert L. Tsai

Faculty Scholarship

This Essay is the product of the 2025 “Constitutional Law Schmooze,” where academics from a variety of disciplines and from all over the country meet to discuss a common topic of constitutional law chosen by the moderator. This year’s topic was “caste.” The two of us, having written independent “tickets” of admission for the schmooze—i.e., short essays setting out our tentative thoughts about “caste”—turned out to be relative skeptics about the value of the term for lawyers. We are certainly not hostile to those who differ with us. This should be regarded as a “friendly dissent,” as distinguished, say, from …

Toward A Broader Theocentric Environmentalism, Melvin L. Otey

Duke Environmental Law & Policy Forum

No abstract provided.

Definite Convictions: United States V. Alt And The Seventh Circuit's Prohibition On Defining "Beyond A Reasonable Doubt", Samuel Busiman

Minnesota Law Review Vols. 106:2 onward (2021-present)

The Seventh Circuit prohibits judges and attorneys from defining “beyond a reasonable doubt” to jurors. While United States v. Alt crystalized this prohibition in early 2023, the circuit has effectively banned definition of the phrase for much longer. Yet, a growing consensus of psychological research into the standard reveals that when left undefined, it fails to protect criminal defendants from uncertain convictions that violate the requirements of due process. What’s more, the phrase was never supposed to serve as a standard of proof in the first place—its historical origins reveal it functioning to assuage the spiritual concerns of early Christian …

Crisis Of Conscience In Post-Roe America, Elizabeth Sepper

The Journal of Contemporary Legal Issues

This essay proceeds in four parts. Summarizing my previous writing, Part II explains that since Roe, the law has systematically favored refusing individuals and institutions. This asymmetry was unjustified, because “[c]onscience equally may compel a doctor or nurse to deliver a controversial treatment to a patient in need.” After Dobbs v. Jackson Women’s Health Organization, the asymmetry may deepen. In restrictive states, Part III contends, the crisis of conscience for willing providers will increase, even as rights to refusal expand. Part IV identifies several possible complications for the legal framework governing conscience in medicine. It suggests that as …

Ndls Communicator: Week Of 02.26.24, Notre Dame Law School

NDLS Communicator

The Latest News

• Notre Dame Law School awards endowed professorships to Paul Miller and Jeff Pojanowski
• Professor Richard Garnett appointed to serve as a lay consultant on the USCCB's Committee for Religious Liberty
• ND Law EJC director Jimmy Gurulé to address Consular Summit in Mexico City on wrongful convictions
• ND Law students win asylum for families through immigration externship
• Clinical Professor Emerita Judith Fox co-authors Eviction Court Watch Study
• Sherif Girgis' article, "Living Traditionalism," was quoted in the New York Times to help interpret Justice Barrett's and Judge Newsom's takes on the Supreme Court's 'history-and-tradition' tests.
• Emily Bremer's new paper, …

How Viable Is Viability? Artificial Womb Technology And The Threat To Abortion Access, James E. Brown

Michigan Journal of Gender & Law

The viability standard plays an important role in abortion access around much of the United States. In fact, before the Dobbs decision, the viability standard was the constitutional gatekeeper to abortion access and was uniform across the entire nation. Unfortunately, the Supreme Court has removed the constitutional right to abortion altogether. Nevertheless, I will provide an argument as to why Dobbs does not signal the end of viability-based abortion around the U.S. I will prove the importance of the viability standard even in a post-Dobbs society, highlighting its operation within various state laws, such as Michigan’s Prop. 3, as well …

Free Exercise Of Abortion, Elizabeth Sepper

BYU Law Review

For too long, religion has been assumed to be in opposition to abortion. Abortions consistent with, motivated by, and compelled from religion have been erased from legal and political discourse. Since the fall of Roe v. Wade, free exercise claims against abortion bans have begun to correct course. Women and faith leaders in several states have filed suit, asserting their religious convictions in favor of abortion. They give form to the reality—as progressive theologians have long argued—that to have a child can be a sacred choice, but not to have a child can also be a sacred choice. And they …

Ethical Lawyering: The Role Of Honor, Conscience, And Codes, Vincent R. Johnson

St. Mary's Journal on Legal Malpractice & Ethics

No abstract provided.

Just Peace Framework: A Brief Primer, Eli S. Mccarthy

The Journal of Social Encounters

This short primer will describe the basic components of a just peace framework. Then I will describe the recent trajectory of Catholic and Christian discourse on just peace, as well as engage a related discourse at the United Nations on sustaining peace.

Contingency And Contestation In Christianity And Liberalism, Michael P. Moreland

Faculty Publications

No abstract provided.

Contingency And Contestation In Christianity And Liberalism, Michael P. Moreland

Notre Dame Law Review

What is the relationship of Christianity to liberalism? Answers include: Liberalism is a product of the moral legacy of Christianity, such as the dignity of individual human persons, equality, rights, perhaps even some forms of democratic institutionalism. Or liberalism is a hostile reaction against Christianity by way of an autonomous individualism set against divinely ordained creatureliness and dependence, democracy against authority, egalitarianism against hierarchy. Or liberalism is in a modus vivendi relationship with Christianity and vice versa. Or perhaps there is something true about each of these answers.

Critiques of liberalism in law and politics come in waves. The liberal-communitarian …

Commercialization Of Separated Human Body Parts - Unpacking Instrumentalization Approach, Arseny Shevelev, Georgy Shevelev

Pace International Law Review

The principle of non-commercialization, which prohibits trade in separated human body parts, has long been firmly embedded in many European legal orders and has become an integral part of them. However, many new uses for human biomaterials have now been discovered, and the need for them has reached a historical climax. This paper aims to explain the main tenets of non-commercialization theory, including such principles as human dignity and need to protect human’s health, and to show that these categories have so far been understood in a very one-sided and visceral way, and largely in contradiction to their true spirit. …

Assisted Suicide, Forced Cooperation, And Coercion: Reflections On A Brewing Storm, Lucia A. Silecchia

Scholarly Articles

Because government funds to institutions and individuals finance a significant amount of medical care in the United States, the prospect of conditions or “strings” attached to that funding is an ever-present specter.

Ethical Lawyering: The Role Of Honor, Conscience, And Codes (Reviewing Michael S. Ariens, The Lawyer’S Conscience: A History Of American Lawyer Ethics), Vincent R. Johnson

Faculty Articles

Michael Ariens’ new book, The Lawyer’s Conscience: A History of American Lawyer Ethics, is a monumental work, rooted in his decades of excellent scholarship in the fields of attorney professional responsibility and legal history. The Lawyer’s Conscience captures the great sweep and key features of the roughly 250-year period in American legal ethics running from colonial times to the present day. Richly detailed and vividly presented, the story takes the reader on a grand tour of the landmark events and changing ideas that have defined the aspirations, responsibilities, and accountability of members of the American legal profession.

Contra Naturam, F. H. Buckley

Northern Illinois University Law Review

There’s a revival of interest in natural law, but while its adherents claim to hold the philosophic high ground, they’ve failed to recognize the doctrine’s weaknesses. Classical natural law holds that our moral requirements are rooted in the natural world and the instincts and preferences that form human nature. However, this runs afoul of the logical distinction between empirical and normative statements; and while other natural lawyers say they’ve avoided this problem, their “New Natural Law” implausibly asserts that rational self-interest will lead us to the good. It won’t, because rational self-interest can’t explain the duties we owe other people. …

Accepting The Unacceptable: Trinity Western University, Religious Freedom, And The Meaning Of Liberal Constitutionalism, Robert Stephen Boissonneault

LLM Theses

This thesis proposes an answer to the question of when, and under what conditions, a state operating within the framework of liberal constitutionalism may legitimately condition receipt of public benefits on the recipient's conformity with liberal values—a question that is implicitly asked, but never directly answered, by the decision of the Supreme Court of Canada in Law Society of British Columbia v Trinity Western University. How this question is answered has significant implications for the law of religious freedom in Canada. This thesis posits a conceptual distinction between two types of public benefit: public licences and public mandates. This distinction …

Brief Of Amici Curiae Catholic Medical Association And Coptic Medical Association Of North America In Support Of Appellees, Eric N. Kniffin, John A. Meiser, Francesca M. Genova

Court Briefs

No. 2021CA1855
Barbara Morris v. Centura Health Corporation

Appeal from: Colorado District Court, Arapahoe County Case No. 2019CV31980 (Hon. Peter Frederick Michaelson)

From the Summary of Argument

At its core, this case concerns a religious hospital’s right to provide care in accordance with its faith commitments. Centura Health is a Christian healthcare system that is composed of Catholic and Seventh-day Adventist hospitals, including St. Anthony Hospital, the Catholic Hospital for which Dr. Morris worked. In service of their religious mission, Centura Health and St. Anthony Hospital (collectively, “Centura”) require their doctors to abide by the Ethical and Religious Directives for …

The Role Of Emotion In Constitutional Theory, J. Joel Alicea

Notre Dame Law Review

Although the role of emotion in law has become a major field of scholarship, there has been very little attention paid to the role of emotion in constitutional theory. This Article seeks to fill that gap by providing an integrated account of the role of emotion within the individual, how emotion affects constitutional culture, and how constitutional culture, properly understood, should affect our evaluation of major constitutional theories.

The Article begins by reconstructing one of the most important and influential accounts of emotion in the philosophical literature: that of Thomas Aquinas. Because Aquinas’s description of the nature of emotion accords …