Digital Commons Network^™

"Unrighteous Compact": Louisa May Alcott's Resistance To Contracts And Promises In Moods, Nina Bannett

Publications and Research

Alcott’s first adult novel, Moods, initially published in 1864, presents oral promises between women as extralegal alternatives to standard legal contracts between men and women. In the 1864 edition of Moods, Alcott's protagonist, Sylvia Yule, fails to understand the constraints of marriage as a type of contract, and the results are dramatic. In fact, Alcott undermines the idealized marriage plot so crucial to her later, wildly popular works like Little Women (1868-69). In the 1864 Moods, Alcott boldly questions both legal contracts and oral promises characteristic of nineteenth-century conceptions of romantic love and heterosexual friendship.

The Canon Of American Legal Thought, Robert E. Rodes

Journal Articles

Professors Kennedy and Fisher have put together a book containing twenty essays, most of them first published in law reviews. They are elegantly presented, and each is preceded by an introductory essay by one of the editors, which provides background information on the author, analyzes the piece lucidly and succinctly, and situates it in the development of American legal thought. Each piece is also preceded by a bibliography, which further situates it by describing the rest of the author's work and summarizing the commentary it has evoked. All the works are given in full, adding considerably to what can be …

Branded: Corporate Image, Sexual Stereotyping, And The New Face Of Capitalism, Dianne Avery, Marion Crain

Journal Articles

No abstract provided.

Social Security For Migrant Workers: The Eu, Ilo & Treaty Based Regimes, Barbara J. Fick, Alma Clara Garcia Flechas

Journal Articles

Migrant workers face special problems in terms of qualifying for, and receiving payment under, national social security systems. In an effort to mitigate these problems, many states coordinate their social security systems. This paper explores how coordination schemes work in regional mechanisms such as the European Union, in international conventions adopted by the International Labour Organisation, and in multi-lateral treaties such as the Andean Social Security Instrument.

The Much Maligned 527 And Institutional Choice, Lloyd Hitoshi Mayer

Journal Articles

The continuing controversy over 527 organizations has led Congress to impose extensive disclosure requirements on these political organizations and to consider imposing extensive restrictions on their funding as well. The debate about what laws should govern these entities has, however, so far almost completely ignored the fact that such laws raise a complicated institutional choice question.

This Article seeks to resolve that question by developing a new institutional choice framework to guide this and similar choices. The Article first explores the context for making this determination by describing the current laws governing 527s, including both federal election laws administered by …

Unenumerated Rights And The Limits Of Analogy: A Critque Of The Right To Medical Self-Defense, O. Carter Snead

Journal Articles

Volokh’s project stands or falls with the claim that the entitlement he proposes is of constitutional dimension. If there is no fundamental right to medical self-defense, the individual must, for better or worse, yield to the regulation of this domain in the name of the values agreed to by the political branches of government. Indeed, the government routinely restricts the instrumentalities of self-help (including self-defense) in the name of avoiding what it takes to be more significant harms. This same rationale accounts for current governmental limitations on access to unapproved drugs and the current ban on organ sales. The FDA …

Pluralism, Dialogue, And Freedom: Professor Robert Rodes And The Church-State Nexus, Richard W. Garnett

Journal Articles

The idea of church-state separation and the image of a wall are at the heart of nearly every citizen's and commentator's thinking about law and religion, and about faith and public life. Unfortunately, the inapt image often causes great confusion about the important idea. What should be regarded as an important feature of religious freedom under constitutionally limited government too often serves simply as a slogan, and is too often employed as a rallying cry, not for the distinctiveness and independence of religious institutions, but for the marginalization and privatization of religious faith.

How, then, should we understand church-state separation? …

Erastian And High Church Approaches To The Law: The Jurisprudential Categories Of Robert E. Rodes, Jr., M. Cathleen Kaveny

Journal Articles

It is a great honor for me to have been asked to contribute to this issue of the Journal of Law and Religion focusing on the work of my colleague and friend, Robert E. Rodes, Jr. In June 2006, Professor Rodes celebrated his fiftieth anniversary as a member of the faculty of Notre Dame Law School. His long career has marked him as a founding father of interdisciplinary scholarship at the intersection of faith, law, and morality—the very sort of scholarship which this journal is dedicated to fostering and preserving.

The topics that Professor Rodes has considered over the years …

From Family To Individual And Back Again, Margaret F. Brinig

Journal Articles

Loving v. Virginia has been thought of in many ways: as an important step toward full equality for African-Americans, as, more generally, a statement about the suspect classification of race, as a declaration about the fundamental nature of marriage, and as a critical addition to the construction of the right to privacy (as well as, of course, exemplified in the validation of the Lovings' own marriage).

In my contribution to the first Loving symposium, I wrote about the increasing tendency of the Supreme Court, following the 1967 decision, to treat the rights of intimacy as belonging to the individual adults …

On Hart's Ways: Law As Reason And As Fact, John M. Finnis

Journal Articles

This address at the Hart Centenary Conference in Cambridge in July 2007 reflects on foundational elements in Hart's method in legal philosophy. It argues that his understanding of what it is to adopt an internal point of view was flawed by (a) inattention to the difference between descriptive history (or biography or detection) and descriptive general theory of human affairs, (b) inattention to practical reason as argument from premises, some factual but others normative (evaluative) in their content, and (c) relative inattention to the deliberations of law-makers as distinct from subjects of the law. These flaws contributed to a concept …

Addressing Urban High-Poverty School Teacher Attrition By Addressing Urban High Poverty School Teacher Retention: Why Effective Teachers Perservere, Sueanne E. Mckinney, Robert Q. Berry, Daniel L. Dickerson, Gloria Campbell-Whately

Teaching & Learning Faculty Publications

Recruiting and retaining quality teachers specific for high-poverty schools in urban areas is a national concern, especially in light of the "No Child Left Behind" federal legislation. The educational realities, detrimental effects of poverty, and human despair that often depress low-income communities can prove to be quite overpowering for many teachers new to the profession and significantly contribute to high levels of teacher absenteeism, attrition rates, and teacher shortages. Examining this issue through a new lens, that being through the eyes of effective urban high-poverty school educators, has the potential to spark spirited conversations and debates among policy makers and …

Table Of Contents - Issue 2

Missouri Law Review

Table of Contents - Issue 2

Table Of Contents - Issue 4

Missouri Law Review

Table of Contents - Issue 4

Imposing A Cap On Capital Punishment, Adam M. Gershowitz

Missouri Law Review

This Article argues that because prosecutors have discretion to seek the death penalty and too many cases, they lack the incentive to police themselves and choose carefully. Put simply, because there are too few legal constraints - and virtually no political constraints - on the sheer number of cases in which prosecutors can pursue the death penalty, the Government is not under sufficient pressure to limit its use of capital punishment to only the most heinous cases. As a result, two things happen. First, the death penalty is sought and meted out in some cases, which though terrible, are no …

Missouri's Nonpartisan Court Plan From 1942 To 2005, Charles B. Blackmar

Missouri Law Review

Missouri's Constitution of 1821 provided for the appointment of all superior court judges by the governor, in the manner which prevailed in most of the states then members of the union. With the advent of Jacksonian democracy, a feeling developed that all persons holding important public positions should be elected by the voters, and most of the states opted for the popular election of trial and appellate judges. In 1848, Missouri amended its constitution to provide for popular election of all judges, including judges of the Supreme Court, on partisan tickets at the regular biennial elections. Missouri continued to elect …

Charles B. Blackmar: Professor, Judge, Chief Justice And Charlie, Michael A. Wolff

Missouri Law Review

This eulogy was delivered by Michael A. Wolff, Chief Justice of the Supreme Court of Missouri, at the funeral service for Judge Charles Blackmar, who died January 20, 2007, at the age of 84.

Struggling To Give Meaning To The Concept Of Meaningful Interference: The Eighth Circuit Announces A New Rule, Joshua C. Devine

Missouri Law Review

This Note examines United States v. Va Lerie, a recent Eighth Circuit case involving law enforcement interference with property entrusted to Greyhound, a third-party common carrier. In Va Lerie, the Eighth Circuit established a new test for determining when property entrusted to third-party common carriers is seized within the meaning of the Fourth Amendment. This Note argues that the Eighth Circuit's new test fails to comport with the holding of Jacobsen. As such, the Eighth Circuit should have adhered to a line of precedent that distinguishes between the touching of property by law enforcement officials and a more detailed inquiry …

Viewpoint Discrimination In Law School Clinics: Teaching Students When And How To Just Say No, Jason A. Kempf

Missouri Law Review

In 1996, the American Bar Association ("ABA") amended its law school accreditation standards and required that all ABA-approved law schools offer "live-client or other real-life practice experience. '' In doing so, the ABA confirmed the increasingly important role of law school clinics in legal education. This unique teaching environment moves students and professors out of the classroom and into real-world courtrooms. As these "student-lawyers" work on behalf of live clients, they "experience the legal ethics issues lawyers face every day, such as client confidentiality, conflict of interest, and competency issues." Not surprisingly, with these ethical issues come difficult decisions for …

Supreme Court Cordially Invited You To Sue In Federal Court: Hope You Don't Mind Waiting, The, Evan F. Fitts

Missouri Law Review

Congestion in the federal judiciary is so prevalent that it has become an afterthought. From the outset of their introductory Federal Civil Procedure course, most law students learn that any attorney who brings an action in a federal court better be prepared to wait. A recent report by the Federal Judicial Center indicated that the average time between filing and adjudication of issues in federal district courts was approximately two years. It can reasonably be asserted that this length of time is directly proportional to the amount of cases on the federal docket. Therefore, any step to reduce the caseload …

Our Federalism Changes Course: The Supreme Court Limits State Sovereign Immunity In Bankruptcy Actions, Benjamin C. Hassebrock

Missouri Law Review

Although sovereign immunity jurisprudence is not the most highly publicized topic of debate in the mainstream media, it has recently become a major source of contention on the Supreme Court. The flurry of sovereign immunity litigation that has reached the high court in the last decade has yielded mostly 5-4 decisions that have expanded the state's ability to assert immunity as a defense. Given this trend, few could have predicted the outcome of the court's decision in Central Virginia Community College v. Katz. In Katz, the 5-4 decision broke the other direction, and the court held that states had waived …

Safer Destination For Trespassers, A, Ross Mcferron

Missouri Law Review

Traditionally, Missouri courts have maintained the general rule that a possessor of land owes no duty of care to trespassers. However, Missouri courts have adopted some well-defined exceptions to the general rule, particularly in situations where trespassers are easily foreseeable. But, prior to the Humphrey v. Glenn decision in 2005, possessors of land had never owed a duty to adult trespassers regarding a condition on the land. In Humphrey, the Missouri Supreme Court addressed the issue of whether possessors of land had a duty to warn "constant" trespassers of dangerous artificial conditions on the possessors' property. The court determined that …

Dusting Off The Blaine Amendment: Two Challenges To Missouri's Anti-Establishment Tradition, Aaron E. Schwartz

Missouri Law Review

Using broad strokes to paint the rights and protections granted therein, the free exercise and the establishment clauses stand as dual monuments to the great-American experiment in separating the State and the sacred. Their sparse language is contrasted by comparatively specific manifestations of similar interests in the state constitutions. Echoing their federal counterpart, the state constitutions commonly command that the state may not fund religiously affiliated educational institutions. No fewer than thirty-eight states, including Missouri, adopted a so-called "Blaine Amendment," which prevent states from supporting sectarian or religious schools. Employing more detail than its federal counterpart, Missouri's constitution made explicit …

Eliminating Fear Through Recreating Community In Rwanda: The Role Of The Gacaca Courts, Christine M. Venter

Journal Articles

This article describes the institution of the Gacaca Courts in Rwanda, which were set up to try people charged with participating in the 1994 Rwandan genocide. The author examines the options available to the Rwandan government in seeding to prosecute people charged with crimes related to the genocide, and concludes that, while flawed, the gacaca courts were the best option available. The article explores how the courts were developed based on the participatory and restorative ideals of African indigenous legal systems, and how these courts provide an opportunity for some form of "truth telling" in post-genocide Rwanda.

The Freedom Of The Church, Richard W. Garnett

Journal Articles

This Article focuses on what the American theologian and Jesuit John Courtney Murray called a Great Idea, whose entrance into history marked the beginning of a new civilizational era. That idea was libertas ecclesiae, or the freedom of the Church. It served, according to Harold Berman, as the catalyst for the first major turning point in European history and as the foundation for nearly a millennium of political theory. And, this Article suggests, it remains a crucial component of any plausible and attractive account of religious freedom under and through constitutionally limited government. It is tempting to assume or expect …

Solving The "Initiatory Construction" Puzzle (And Improving Direct Democracy) By Appropriate Refocusing On Sponsor Intent, Glenn C. Smith

University of Colorado Law Review

The U.S. Department of Justice and Department of Homeland Security has consistently attempted to make the process of becoming a lawful permanent resident of the United States difficult, at best. A 1997 Department of Justice regulation made this process impossible for a certain class of immigrants known as parolees, despite the fact that the Immigration and Nationality Act explicitly allowed these parolees the opportunity to become lawful permanent residents. The Department later withdrew this regulation because of the controversy it created in the federal circuit courts of appeal. However, new proposed regulations threaten to harm the position of immigrants in …

Beyond Agency Authority: Administrative Elimination Of Statutory Eligibility For Lawful Permanent Residence, Chelsy L. Knight

University of Colorado Law Review

The U.S. Department of Justice and Department of Homeland Security has consistently attempted to make the process of becoming a lawful permanent resident of the United States difficult, at best. A 1997 Department of Justice regulation made this process impossible for a certain class of immigrants known as parolees, despite the fact that the Immigration and Nationality Act explicitly allowed these parolees the opportunity to become lawful permanent residents. The Department later withdrew this regulation because of the controversy it created in the federal circuit courts of appeal. However, new proposed regulations threaten to harm the position of immigrants in …

Secrecy And Access In An Innovation Intensive Economy: Reordering Information Privileges In Environmental, Health, And Safety Law, Mary L. Lyndon

University of Colorado Law Review

This article examines the law concerned with access to information that is commercially valuable when it is kept secret but is also essential to environmental, health, and safety (EHS) risk evaluation. EHS law stimulates sustainable economic activity, including new technologies, and thus complements intellectual property law. Access to EHS information is essential to risk management, but current disclosure obligations are unclear, as the law is a patchwork of familiar but ill-fitting concepts and entitlements. The article discusses the current law that affects disclosure, taking into account recent changes in the technological and economic landscape. It also describes the contrasting uses …

The Tragedy Of The Commons And The Myth Of A Private Property Solution, Amy Sinden

University of Colorado Law Review

According to generally accepted wisdom of welfare economics, there are two potential solutions to the tragedy of the commons: 1) government regulation, or 2) privatization. Government regulation and privatization can usefully be distinguished from each other based on who answers the "how much" question. Under the former, government answers the "how much" question, and under the latter, the market answers it. When the U.S. environmental movement began in the 1970s, government regulation seemed the obvious choice. But in recent years, intellectual fashions have changed, and privatization has become the preferred solution. The privatization solution, however, is a myth that exists, …

Coalbed Methane: Crafting A Right To Sell From An Obligation To Vent, L. James Lyman

University of Colorado Law Review

Coalbed methane ("CBM") is a rapidly growing source of energy in the United States, particularly in the Intermountain West. Rather than being captured and utilized, however, much of the recoverable CBM is released into the atmosphere as coal mine methane ("CMM), a byproduct of coal mining. Allowing a federal coal operator to capture and sell or otherwise consume CMM would reduce greenhouse emissions, provide additional fuel for power generation, and avoid the waste of valuable natural resources. However, there is sparse guidance from the federal government regarding the right of federal coal operators to engage in CMM sale. What little …

From Martz To The Twenty-First Century: A Half- Century Of Natural Resources Law Casebooks And Pedagogy, Michael C. Blumm, David H. Becker

University of Colorado Law Review

Clyde Martz published the first natural resources law casebook in 1951, combining the previously discrete subjects of water law, mining law, and oil and gas law. Martz relied almost exclusively on case excerpts and emphasized the creation of private rights in natural resources. Over the nexthalf century, through several generations of casebooks, the natural resources course developed in response to the rise of the environmental movement and a series of energy crises. This article traces the evolution of the natural resources law casebooks from Martz's pioneering effort through several generations of texts to a new generation of casebooks that has …