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Journal Articles

2006

Articles 61 - 76 of 76

Full-Text Articles in Law

Pound's Century, And Ours, Jay Tidmarsh Jan 2006

Pound's Century, And Ours, Jay Tidmarsh

Journal Articles

On August 29, 1906, a little known Nebraska lawyer climbed to the podium at the twenty-ninth American Bar Association convention in St. Paul, Minnesota, and commenced the most thoroughly successful revolution in American law. The lawyer was Roscoe Pound, and the title of his address was The Causes of Popular Dissatisfaction with the Administration of Justice. The speech was hardly popular in its own time. The ABA nearly refused to publish the remarks. Thirty-two years would pass before Pound's seeds fully flowered. Even today, many of Pound's criticisms of our adversarial civil justice system ring as true as the day …


Foreign Relations As A Matter Of Interpretation: The Use And Abuse Of Charming Betsy, Roger P. Alford Jan 2006

Foreign Relations As A Matter Of Interpretation: The Use And Abuse Of Charming Betsy, Roger P. Alford

Journal Articles

Charming Betsy is a canon of construction that construes legislative enactments consistent with the law of nations. This canon promotes the passive virtue of avoiding constitutional problems by eschewing potential international law violations through statutory interpretation, thereby enhancing the United States' performance in foreign affairs. As a rule of separation of powers, Charming Betsy helps explain how foreign relations concerns clarify the scope of legislative, executive, and judicial authority. But when advocates contend that the Constitution likewise should be read through the lens of Charming Betsy, they abuse the doctrine by ignoring its purpose. While structural guarantees that relate to …


The Supervisory Power Of The Supreme Court, Amy Coney Barrett Jan 2006

The Supervisory Power Of The Supreme Court, Amy Coney Barrett

Journal Articles

Relying on something it calls supervisory power or supervisory authority, the Supreme Court regularly prescribes rules of procedure and evidence for inferior courts. Both scholars and the Court have treated the Court's exercises of this authority as unexceptional exercises of the inherent authority that Article III grants every federal court to regulate procedure in the course of adjudication. Article III's grant of inherent authority, however, is conventionally understood as permitting a federal court to regulate its own proceedings. When the Supreme Court exercises supervisory power, it regulates the proceedings of other federal courts. More than a reference to every court's …


Defending Human Rights In The "War" Against Terror, Douglass Cassel Jan 2006

Defending Human Rights In The "War" Against Terror, Douglass Cassel

Journal Articles

Safeguarding human rights in our "war" against terrorism is both the right and the smart thing to do. It is right because human rights embody our fundamental values as Americans and as Christians. Our Constitution stands for freedom; our Creator teaches us to respect the God-given dignity of each human soul. Christians are called to cherish human dignity, not only of innocents, and not only of captives in war whose status as combatant or civilian may be uncertain, but also of cardinal sinners, the terrorists themselves. Christ Jesus teaches us to hate the sin, but somehow to bring ourselves to …


The Secret Sharers: "Anthony Rivers" And The Appellant Controversy, 1601-2, John M. Finnis, Patrick Martin Jan 2006

The Secret Sharers: "Anthony Rivers" And The Appellant Controversy, 1601-2, John M. Finnis, Patrick Martin

Journal Articles

Historians have known of the letters of “Anthony Rivers,” recounting religious, political, and military affairs from the court in London in 1601–3, and of certain dispatches from Rome forwarded to Robert Cecil by Thomas Phelippes, “the Decipherer,” in 1602. In this article, Patrick Martin and John Finnis show that the letters and dispatches were integral to a coordinated effort by William Sterrell, secretary to the Earl of Worcester and long-time double agent, and Father Robert Persons, prefect in Rome of the Jesuit mission to England, to frustrate the climactic third appeal to the pope by the disaffected secular priests known …


The Democratic Virtues, Our Common Life And The Common School: Trust In Democracy: Anabaptists, Italian Americans, And Solidarity, Thomas L. Shaffer Jan 2006

The Democratic Virtues, Our Common Life And The Common School: Trust In Democracy: Anabaptists, Italian Americans, And Solidarity, Thomas L. Shaffer

Journal Articles

Consider two phrases in Professor Marie Failinger's charge to those of us discussing Jeffrey Stout's Democracy and Tradition, October 28, 2005, at Hamline University: (i) "How would we construct a real democratic sociality holding each other responsible for ethical life that would warrant trust in democracy? . . . and, (ii) How do the religious traditions help us reflect on this issue?"

My reflection, probably sectarian, refers more to where we come from than to what we choose. The reference here is to three communities, none of which is primarily concerned with "real democratic sociality." But none of them is …


Intellectual Property, Privatization And Democracy: A Response To Professor Rose, Mark P. Mckenna Jan 2006

Intellectual Property, Privatization And Democracy: A Response To Professor Rose, Mark P. Mckenna

Journal Articles

The broad thesis of Professor Rose's article Privatization: The Road to Democracy? is an important reminder that no institution deserves all the credit for democratization, and that the success of any particular institution in promoting democracy depends to a greater or lesser extent on the existence and functioning of other political institutions. While protection of private property has proven quite important to successful democratic reform, we should not be lulled into thinking private property can carry the whole weight of reform. That lesson has particular significance in the context of intellectual property, given proponents general tendency to overstate the significance …


Introduction: Religion, Division, And The Constitution, Richard W. Garnett Jan 2006

Introduction: Religion, Division, And The Constitution, Richard W. Garnett

Journal Articles

Thirty-five years ago, in his landmark Lemon v. Kurtzman opinion, Chief Justice Warren Burger declared that state actions could "excessive[ly]"—and, therefore, unconstitutionally—"entangle" government and religion, not only by requiring or allowing intrusive monitoring by officials of religious institutions and activities, but also through their "divisive political potential." He worried that government actions burdened with this "potential" pose a "threat to the normal political process and "divert attention from the myriad issues and problems that confront every level of government." And, he insisted that "political division along religious lines was one of the principal evils against which the First Amendment was …


The Fundamental Rights Of The Shareholder, Julian Velasco Jan 2006

The Fundamental Rights Of The Shareholder, Julian Velasco

Journal Articles

Shareholders have many legal rights, but they are not all of equal significance. This article will argue that two rights — the right to elect directors and the right to sell shares — are more important than any others, that these rights should be considered the fundamental rights of the shareholder, and that, as such, they deserve a great deal of respect and protection by law.

The history of corporate law has been one of increasing flexibility for directors and decreasing rights for shareholders. Although the law seems to have coalesced around the norm of shareholder primacy, this is not …


Prophecy And Casuistry: Abortion, Torture And Moral Discourse, M. Cathleen Kaveny Jan 2006

Prophecy And Casuistry: Abortion, Torture And Moral Discourse, M. Cathleen Kaveny

Journal Articles

In turn of the 21st century United States there are serious moral disputes over issues such as abortion and torture among persons who see themselves as belonging to the same moral tradition. These disputes have not given rise to fruitful discussion about differences, but instead led to a breakdown of conversation and even of community. A part of these clashes and breakdowns are not the result of mutually inconsistent moral premises, but are driven by tensions between two styles of moral discourse, the prophetic and casuistical. The former invokes the absolute and fiery rhetorical style of biblical prophets while the …


Tradition And Development In The Catholic Church's Teaching On Marriage: A Response To Cardinal Trujillo, John J. Coughlin Jan 2006

Tradition And Development In The Catholic Church's Teaching On Marriage: A Response To Cardinal Trujillo, John J. Coughlin

Journal Articles

During the twentieth century, the teaching of the Roman Catholic Church on the nature of marriage remained fully faithful to ancient tradition and witnessed new developments. In his article, The Nature of Marriage and Its Various Aspects, Alfonso Cardinal Lopez Trujillo has afforded a splendid overview of both the timeless and adaptive features of the Church's teaching. In commenting on the article, I have been asked to identify obstacles to the article's reception as well as to suggest possible resolutions. My brief response to His Eminence, Cardinal Trujillo, consists of two parts. First, I suggest that an epistemological issue is …


Religion, Division, And The First Amendment, Richard W. Garnett Jan 2006

Religion, Division, And The First Amendment, Richard W. Garnett

Journal Articles

Nearly thirty-five years ago, in Lemon v. Kurtzman, Chief Justice Warren Burger declared that state programs or policies could excessive(ly) - and, therefore, unconstitutionally - entangle government and religion, not only by requiring or allowing intrusive public monitoring of religious institutions and activities, but also through what he called their divisive political potential. Chief Justice Burger asserted also, and more fundamentally, that political division along religious lines was one of the principal evils against which the First Amendment was intended to protect. And from this Hobbesian premise about the inten(t) animating the First Amendment, he proceeded on the assumption that …


Congressional Power And State Court Jurisdiction, Anthony J. Bellia Jan 2006

Congressional Power And State Court Jurisdiction, Anthony J. Bellia

Journal Articles

Federal laws that regulate state institutions give rise to what the Supreme Court has described as the oldest question of constitutional law. In recent years, the Court has confronted questions of congressional power to regulate state legislatures and executives, but has not directly confronted any question of congressional power to regulate state courts. Since the Founding, questions of congressional power to regulate state court jurisdiction of Article III cases have arisen - most notably, congressional power to assign jurisdiction of federal criminal cases to state courts. Today, significant questions of congressional power to regulate state court jurisdiction over non-Article III …


The Neglected Political Economy Of Eminent Domain, Nicole Stelle Garnett Jan 2006

The Neglected Political Economy Of Eminent Domain, Nicole Stelle Garnett

Journal Articles

This Article challenges a foundational assumption about eminent domain - namely, that owners are systematically undercompensated because they receive only fair market value for their property. The Article shows that, in fact, scholars have overstated the undercompensation problem because they have focused on the compensation required by the Constitution, rather than on the actual mechanics of eminent domain. The Article examines three ways that Takers (i.e., non-judicial actors in the eminent domain process) minimize undercompensation. First, Takers may avoid taking high-subjective-value properties. Second, Takers frequently must pay more compensation in the form of relocation assistance. Third, Takers and property owners …


Chief Justice Rehnquist's Enduring Democratic Constitution, Richard W. Garnett Jan 2006

Chief Justice Rehnquist's Enduring Democratic Constitution, Richard W. Garnett

Journal Articles

William H. Rehnquist's essay, The Notion of a Living Constitution, was delivered as the Will E. Orgain Lecture and then published thirty years ago, back when Rehnquist was still a relatively junior Associate Justice. The piece provides a clear and coherent statement of Rehnquist's judicial philosophy, and the Harvard Journal of Law and Public Policy and the Texas Law Review deserve thanks for their initiative and generosity in reproducing it, in memory of his life and work.

This introduction to Rehnquist's essay highlights his view that the Notion of a Living Constitution was to be resisted, not out of pious …


The Tax Code As Nationality Law, Michael S. Kirsch Jan 2006

The Tax Code As Nationality Law, Michael S. Kirsch

Journal Articles

This article questions the frequently-asserted axiom that Congress's taxing power knows no bounds. It does so in the context of recently-enacted legislation that creates a special definition of citizenship that applies only for tax purposes. Historically, a person was treated as a citizen for tax purposes (and therefore taxed on her worldwide income and estate) if, and only if, she was a citizen under the nationality law. As a result of the new statute, in certain circumstances a person might be treated as a citizen for tax purposes (and therefore taxed on her worldwide income and estate) for years or …