Law Commons^™

The New Natural Law Theory: A Reply To Jean Porter, Gerard V. Bradley, Robert George

Journal Articles

The theory of practical reasoning and morality proposed by Germain Grisez, and developed by him in frequent collaboration with John Finnis and Joseph Boyle, is the most formidable presentation of natural law theory in this century. Although work by Finnis and others has brought this "new natural law theory" (NNLT) to the attention of secular philosophers, the theory is of particular interest to Catholic moralists. This is because NNLT provides resources for a fresh defense of traditional moral norms, including those forbidding abortion, euthanasia, and other forms of "direct" killing, as well as sexual immoralities such as fornication, sodomy, and …

Comment On Jana Singer's Alimony And Efficiency, Margaret F. Brinig

Journal Articles

I propose to make three comments on Professor Singer's article. First, I will present my views on the limitations of law and economics when applied to family law. Second, I will discuss why specialization between husbands and wives is not necessarily efficient, and perhaps not even the best use of law and economics in the study of the family. Finally, and perhaps most controversially, I will question whether there are gender differences that should impact alimony law.

Sexual Freedom And Your Right To Privacy: A Selective Bibliography, Sandra S. Klein

Journal Articles

Like so many other privacy issues, concern over sexual freedom took on more than intellectual overtones with the advent of greater public discussion. As courts and government appeared to enter the most private domain of all, the bedroom, the public's interest in privacy issues dealing with sexual freedom increased dramatically. This bibliography should serve as a valuable tool for researchers who have an interest in this highly controversial area of social concern.

The Church And The Law, Thomas L. Shaffer

Journal Articles

The image I want to use to talk about the church in the state, from a Christian lawyer's point of view, is in two of the novels of the late theological storyteller Walker Percy. We Percy readers first saw the image in Love in the Ruins. Percy's sub-title for that novel was "The Adventures of a Bad Catholic at a Time Near the End of the World." His setting is the not-too-distant future in North America. Social climate and civil discourse are even worse than they are now. Percy's central figure, Dr. Thomas More, the bad Catholic, and a few …

Marriage And Opportunism, Margaret F. Brinig, Steven M. Crafton

Journal Articles

Spouse abuse is no longer a secret. It has become a thorn in America's conscience. Abuse even warranted a lengthy Supreme Court discussion in an opinion on abortion. It is certainly worth thinking about whether anything systemic caused the apparent outbreak of violence in the home. If there is a legal "fix" that would remove incentives to abuse, and therefore reduce the incidence of abuse at the margin, we should know about it.

It is the thesis of this article that increased abuse and other undesirable behavior is a natural consequence of the fact that in some states the marriage …

Depravity Thrice Removed: Using The 'Heinous, Cruel, Or Depraved' Factor To Aggravate Convictions Of Nontriggermen Accomplices In Capital Cases, Richard W. Garnett

Journal Articles

In Tison v. Arizona, the Tison brothers' appeal from their death sentences, the U.S. Supreme Court held that a nontriggerman convicted of first-degree felony murder could constitutionally be executed if he was a major participant in the crime and if he exhibited a reckless disregard for human life. This decision blurred the bright-line rule announced just five years earlier in Enmund v. Florida, which limited the death penalty to defendants who kill, attempt to kill, or at least intend to kill. Tison thus dramatically increased the exposure of nontriggermen to capital punishment, undercutting the death penalty's limited purpose of identifying …

Bosnia, War Crimes, And Humanitarian Intervention, Jane Olson, Lois Fielding, Holly Burkhalter, Douglas Cassel Jr.

Journal Articles

This presentation examines the history of the laws of war and the effort made through international law to prevent war crimes and to punish those responsible for war crimes. It specifically looks as the Statute of the International Tribunal as a method in establishing the meaning of the crimes. It then evaluates the United States' policy of war crimes as applied in Bosnia and how it has affected its relations with NATO and the UN.

'If I Knew Then What I Know Now': The Role Of After-Acquired Evidence In Employment Discrimination Cases: An Analysis Of Mckennon V. Nashville Banner, Barbara J. Fick

Journal Articles

This article previews the Supreme Court case McKennon v. Nashville Banner Publishing Company, 513 U.S. 352 (1995). The author expected the Court to address whether after acquired evidence of employee misconduct is a complete defense for an employer's termination decision which would otherwise violate the Age Discrimination in Employment Act or is it relevant only to the scope of the remedy afforded to an employee terminated in violation of the Act.

Professional Employee Or Supervisory Employee: Are Nurses Protected By The Nlra? An Analysis Of Nlrb V. Health Care & Retirement Corp., Barbara J. Fick

Journal Articles

This article previews the Supreme Court case NLRB v. Health Care and Retirement Corp. of America, 511 U.S. 571 (1994). The National Labor Relations Act protects employees' right to unionize and their actions aimed at improving working conditions. The Act does not, however, protect supervisory employees on the premise that employers deserve the undivided loyalty of their agents. In this case, the Court is asked to decide if nurses who direct the work of aides and orderlies are employees protected from discharge in their efforts to improve working conditions, or are supervisors who can be fired for such conduct.

Subsidiarity And Competition: Decentralized Enforcement Of Eu Competition Laws, Roger P. Alford

Journal Articles

The purpose of this article is to examine how the European Union has applied, and potentially will apply, the principle of subsidiarity in the enforcement of EU competition laws. This article thus focuses on how the Union envisages national court participation in the application and enforcement of EU competition laws rather than how, in practice, Member State courts have exercised their concurrent jurisdiction in enforcing Articles 85 and 86. Part One provides a brief introduction to EU competition law enforcement and examines two recent decisions by the Court of Justice and the Court of First Instance clarifying the relationship between …

Making Way For A New Standard: Women Redefine The "Ideal Professor", Margaret F. Brinig

Journal Articles

Unfortunately for most women, the profile of an ideal law professor is a married man with a stay-at-home wife. A profile very like that of ideal workers in other legal settings.

It is common knowledge that women who teach law, including very able and committed women, do not achieve tenure and promotion at the same rate as their male counterparts. Although some institutions actually discriminate against women, in most, women lag behind because the committees and administrators deciding promotion and tenure view all applicants through the same lens. Their focus is driven by their law school's need to compete with …

Over Forty Years In The On-Deck Circle: Congress And The Baseball Antitrust Exemption, Ed Edmonds

Journal Articles

"Congressional discussion of baseball's antitrust exemption stretches over forty years involving a significant number of legislative initiatives. Although the exemption is a judicial aberration without justification, the 103d Congress will probably be no more successful than its predecessors in altering its long-standing existence. The three bills under consideration are not specifically crafted to resolve the problems of the changes in the commissioner's office or the lack of an expansion franchise or the relocation of an existing franchise to the Tampa-St. Petersburg area. Much of the history of Congressional concern over baseball's antitrust status suggests that broad-based attempts to completely remove …

Using Trade To Enforce International Environmental Law: Implications For United States Law, Mary Ellen O'Connell

Journal Articles

The United States has enviable domestic environmental protection laws. However, good domestic environmental protection raises two concerns: effectiveness and competitiveness. In response to these two problems of environmental protection—effectiveness and competitiveness—members of Congress introduced over thirty bills in 1990 to amend U.S. trade laws. The bills were designed to either press other states to adopt environmental protection standards similar to the United States own or to at least minimize the competitive disadvantage for U.S. business inherent in U.S. regulations. The bills took one of two approaches: either they aimed at restricting access to U.S. markets for those states failing to …

The Federal Constitutional Court In The German Political System, Donald P. Kommers

Journal Articles

The Federal Constitutional Court is a major policy-making institution in Germany's system of government. Within the space of four decades (1951- 1991), this tribunal has evolved into the most active and powerful constitutional court in Europe. Its pivotal character in the German political system sterns from its role as a judicial lawmaking body created for the specific purpose of deciding constitutional disputes under the Basic Law.1 In deciding such disputes-that is, in interpreting the language and spirit of the Basic Law-the Constitutional Court has influenced the shape of Germany's political landscape, reaching deep into the heart of the existing state, …

Drug Testing/Use, Sandra S. Klein

Journal Articles

Drug testing is one of the most controversial of recent privacy issues. The bibliography which follows provides the reader with access to a wide range of discussion on this topic which is, or should be, of interest to everyone. Whether in our private lives, or on the job, drug use and drug testing will have an impact on every one of us.

Employee/Employer, Sandra S. Klein

Journal Articles

The issue of privacy as it relates to employment in general is one of great concern, both to employers and employees. Both groups are faced with increasing threats to their individual or corporate privacy. Given that such threats carry personal, economic and social consequences, it is not surprising that many people are concerned. The bibliography which follows provides the reader with many sources which should prove useful to those well-versed in the subject, as well as to those who are looking at this issue for the first time.

The Right To Die As An Issue Of Privacy: A Selective Bibliography, Sandra S. Klein

Journal Articles

The issue of whether or not an individual has the right to choose when he or she will die, is a very controversial one for many reasons. Further complicating the issue is the question of who, if anyone, has the right to decide for those who are unable to choose for themselves. The bibliography which follows includes articles which discuss this topic from a right to privacy perspective, and should prove useful to those researchers who are new to the subject, as well as to those who are already familiar with the many complex issues involved.

Your Right To Privacy And Children's Rights/Family Law: A Selective Bibliography, Sandra S. Klein

Journal Articles

In a society increasingly aware of real or perceived social inequities, it is not surprising to note a greater concern for the rights of children and their families. It is also apparent that privacy issues are an integral subset of the larger social sphere of interests. Privacy aspects can be seen to be involved pervasively throughout the area of law dealing with children and families, especially in view of the fact that there is obvious potential for conflict not only between families and the state, but between children and the families of which they are a part

Abortion/Reproductive Rights, Sandra S. Klein

Journal Articles

The issue of a woman's right to choose whether or not to continue with a pregnancy has proven to be complicated for many reasons, not the least of which is the implications for a person's right to do with her body as she sees fit. The bibliography that follows provides the researcher with an in depth look at this issue, with an emphasis on the privacy aspects.

Response To Hittnger, Gerard V. Bradley

Journal Articles

No abstract provided.

Can The Government Change Tax Laws Retroactively?, Matthew J. Barrett

Journal Articles

This case presents an issue regarding the constitutionality of retroactive taxes. In December 1987, to correct a drafting oversight, Congress retroactively amended the requirements of a federal estate tax deduction enacted in October 1986. The Ninth Circuit, using a lenient test, invalidated the amendment’s retroactive application to a December 1986 transaction. Now the case is before the Supreme Court whose decision should indicate whether the Court will relax the almost overwhelming barriers to a successful attack on retroactive taxation established by its earlier cases.

Terrorism, Territorial Sovereignty, And The Forcible Apprehension Of International Criminals Abroad, Jimmy Gurule

Journal Articles

Examines current international law governing use of force extraterritorially; in light of the Alvarez-Machain case in which a Mexican national suspected of murder was forcibly extradited to stand trial in the US.

Response To Hittinger, Gerard V. Bradley

Journal Articles

No abstract provided.

The Legal Status Of The Refugee In The United States, Tang Thi Thanh Trai Le

Journal Articles

The Cold War era brought a shift in United States refugee policy from an emphasis on domestic policy to an emphasis on foreign policy. This meant that a large number of refugees could gain entry to the United States, but only if the refugees came from countries of foreign policy concern to the United States. The end of the Cold War and domestic economic stagnation have returned domestic and nationalistic factors to the forefront in the refugee debate. The case law and proposed legislation indicate that the United States may become less of a haven for refugees than before. Still, …

Determining An Individual's Federal Income Tax Liability When The Tax Benefit Rule Applies: A Fifty-Year Checkup Brings A New Prescription For Calculating Gross, Adjusted Gross, And Taxable Incomes, Matthew J. Barrett

Journal Articles

The tax benefit rule should be described to indicate that it applies to credits and exclusions besides deductions, and deduction recoveries should be reported in the same location as was affected initially. The recovery should not affect gross income, for the purpose of tax equity. The recovery should rather affect either taxable income or adjusted gross income. The IRS and the courts should adopt this new description and principles.

On Religious Legal Ethics, Thomas L. Shaffer

Journal Articles

Perhaps as a result of the new and populous generation of lawyers, or as a holdover from the anti-war generation of law students, or maybe even as fall-out from Watergate, legal ethics has become a serious discipline.

Cutting The Bill For Commonwealth Edison's Nuclear Power Plants: Important Gains For Illinois Public Utility Customers, Robert Jones

Journal Articles

In 1993 Commonwealth Edison, Illinois’s largest electric utility agreed to pay its customers $1.3 billion, the biggest refund issued by a utility in United States history, and to reduce its electricity rates by $339 million per year. This refund and rate reduction settled a decade-long series of cases with consumer advocates over the billions of dollars Edison spent constructing five nuclear power plants. The litigation not only offered relief to Edison customers, who paid some of the highest rates in the country. It dramatically changed Illinois law, giving public utility companies strong incentive to generate electricity through less costly and …

Cercla, Causation, And Responsibility, John C. Nagle

Journal Articles

The Comprehensive Environmental Response, Compensation, and Liability Act of 1980 ("CERCLA") and causation have enjoyed an uneasy coexistence. The tension between them results from the circumstances in which CERCLA became law. The Congress that enacted CERCLA considered two alternative liability schemes, both of which required that "polluters pay" for the cleanup of hazardous wastes. The House proposed imposing liability on those who "caused or contributed" to hazardous waste problems, while the Senate looked to specifically designated "responsible parties." The Senate prevailed. The consequences of that choice for the traditional tort concept of causation, like many other questions left unanswered in …

Celebrating The 125th Anniversary Of The Notre Dame Law School, Anthony J. Bellia

Journal Articles

This year marks the Notre Dame Law School's 125th year of continuous operation. This issue of the Notre Dame Law Review is our contribution to the anniversary celebration.

We asked a few of the Law School's many distinguished graduates to contribute their reflections on legal education at Notre Dame. They are Robert Michael Greene, Class of 1969; Peter T. King, Class of 1968; Patrick McCartan, Class of 1959; and Hon. Martha Vazquez, Class of 1978. We are grateful as well to Hon. Paul V. Niemeyer, Class of 1966, who prepared an essay for the issue.

The Effect Of Transaction Costs On The Market For Babies, Margaret F. Brinig

Journal Articles

Among the more controversial ideas advanced by prominent United States Circuit Court Judge and law professor Richard Posner is his suggestion that a market in babies would rectify many of the problems of the adoption system. His concept has, to say the least, provoked a tremendous reaction in various segments of American society. His critics proclaimed that sales of children would serve to demean the children and their mothers, relegating them to the status of mere commodities. Unscrupulous but wealthy parents might purchase children solely to abuse them. "Baby-selling" became a code word for the foolish extreme to which its …