Law Commons^™

The Curt Flood Act Of 1998: A Hollow Gesture After All These Years?, Edmund P. Edmonds

Journal Articles

This article discusses the Curt Flood Act of 1998 and explores the nonstatutory labor exemption the Supreme Court has applied to professional sports leagues. It also explores the likely impact of the Curt Flood Act on the rights of players or managers to use antitrust laws effectively against one another.

Uses And Misuses Of Comparative Law In International Human Rights: Some Reflections On The Jurisprudence Of The European Court Of Human Rights, Paolo G. Carozza

Journal Articles

Virtually all of Mary Ann Glendon's work can be seen as part of a persistent effort to open some windows in the edifice of American law and allow cross-currents of foreign experience to blow fresh insight into the rooms of our republic. In her critique of contemporary strains of rights discourse in the United States, she makes the case against American insularity quite directly: "In closing our own eyes and ears to the development of rights ideas elsewhere, our most grievous loss is ... the kind of assistance ... that can be gained from observing the successes and failures of …

The Constitutionalism Of Mary Ann Glendon, Donald P. Kommers

Journal Articles

Mary Ann Glendon is an accomplished legal scholar whose books and essays in the field of marriage and family law have received universal acclaim among her peers in the legal academy. More recently, and particularly in the last decade, she has emerged as a notable public intellectual. In this capacity, she has focused her careful reflections on topics such as abortion, religious liberty, social welfare legislation, the changing nature of the legal profession, and the condition of political discourse in America. One of the things that makes her recent work, as well as her earlier publications on family law, so …

Managed Care, Assisted Suicide, And Vulnerable Populations, M. Cathleen Kaveny

Journal Articles

While advocates of physician assisted suicide consider it a core aspect of individual autonomy legalizing the practice is extremely dangerous and puts the most vulnerable members of our society at risk. Legalized physician assisted suicide takes away the autonomy of the decision to die and makes it an option in a flawed healthcare system, where patients are often denied coverage for medical expenses by employer-sponsored benefit plans and medical insurers are concerned primarily with cutting costs spent on each patient. Complexities in the way that physicians are compensated under the current system of managed care is also eroding their responsibility …

On The Practical Meaning Of Secularism, John Finnis

Journal Articles

The secularism I consider in this Article is a public reality, the secularism which shapes public debate, deliberation, dispositions, and action, and dominates our education and culture. I shall be considering the ideas, not the people; and people are often less consistent, and better, than their theories. There is no profit in estimating whether secularism's dominance now is greater than in Plato's Athens or lesser than in Stalin's Leningrad. There is certainly a rich field for historical investigation of the particular and often peculiar forms taken by western secularism under the influence of the faith it supplants. But I shall …

De Re And De Dicto, Robert E. Rodes

Journal Articles

Statements involving knowledge, intent, and the like may often be interpreted either de re (about a thing) or de dicto (about a statement). For instance, A knowingly took B's car can mean either A knowingly took a car that turned out to be B's, the de re interpretation, or A knowingly caused it to be the case that he took B's car, the de dicto interpretation. This paper takes up twelve cases whose outcome depends on which interpretation one gives to a governing principle. It suggests that since the two alternative interpretations are equally supported by the applicable language policy …

The Compromise Of '38 And The Federal Courts Today, John H. Robinson

Journal Articles

In 1998 the legal community of the United States should stop and take stock of two epochal events in the history of the federal judicial system. One of those events, as readers of a procedure symposium do not need to be told, is the sixtieth anniversary of the introduction of the Federal Rules of Civil Procedure. I shall have more to say about that event presently, but I want first to devote a few paragraphs to a second event, one which proceduralists ignore at their peril. The event I have in mind is the initiation of a new era of …

In Memoriam: Father Bill Lewers, Jay Tidmarsh

Journal Articles

There is an old and famous Irish blessing, the last line of which runs: "And may you be in heaven half an hour before the devil knows you're dead." If anyone ever deserved to be happily ensconced in heaven for the proverbial half-hour, it is Bill Lewers.

For the last fourteen years of his life among us, Bill spent his considerable energy improving our understanding and awareness of international human rights. It became Bill's great passion. In 1983, Bill was appointed as Director of the Office of International Justice and Peace for the United States Catholic Conference. When he returned …

No-Fault Laws And At-Fault People, Margaret F. Brinig, F. H. Buckley

Journal Articles

Absent transaction costs, the Coase Theorem suggests that divorce reform would work no change in the frequency of divorce but perhaps would alter the distribution of marital wealth. However, divorce does involve substantial process costs, which no-fault lowered. This paper explores the question of what happened to state divorce rates because of the legal changes wrought by the family law revolution that began in the 1970s, isolating the effect of the legal variable from other demographic and social factors that might also explain the variation in divorce rates across states and across time.

Buying Time For Survivors Of Domestic Violence: A Proposal For Implementing An Exception To Welfare Time Limits, Jennifer Mason Mcaward

Journal Articles

With the passage of the Personal Responsibility and Work Opportunity Reconciliation Act of 1996 (Personal Responsibility Act), states have unprecedented discretion in fashioning their social welfare programs.

This Note examines the Personal Responsibility Act, focusing specifically on the statutory language and history of the sixty-month time limit on receipt of benefits and the two optional exceptions states may enact. This examination reveals that the Act contemplates that states have both the power and the support of Congress and the Department of Health and Human Services to implement exceptions for the benefit of survivors of domestic violence.

Given that states may …

Kann Das Deutsche Verfassungsrechtsdenken Vorbild Fur Die Vereinigten Staaten Sein?, Donald P. Kommers

Journal Articles

Mein Thema läßt sich am besten als Frage formulieren: Was können wir Amerikaner von der Erfahrung der Deutschen mit dem Grundgesetz lernen? Diese Frage wurde für gewöhnlich in der anderen Richtung gestellt, näm lich: Was haben die Deutschen vom amerikanischen Verfassungsrecht ge lernt oder was sollten sie von ihm lernen?

The Bankruptcy Puzzle, Margaret F. Brinig, F. H. Buckley

Journal Articles

This article offers new evidence on the determinants of U.S. consumer bankruptcy filing rates, which tripled from 1984 to 1991. The run-up in filing rates does not appear to be a consequence of legal changes since the increase coincided with Bankruptcy Code amendments designed to reduce filing rates by rejecting opportunistic petitions. The run-up also coincided with a major economic boom and crested with the 1991 recession. However, much of the variation in district filing rates is attributable to differences in social variables, and we suggest that changes in social norms might account for the increased bankruptcy filings. This article …

Euthanasia, Morality, And Law, John M. Finnis

Journal Articles

"Arguments for legalising euthanasia rely on claims about autonomy rights, or claims about political pluralism, or on both sorts of claim. My response will make three main points. First, those demanding this legalisation have shirked their elementary obligation to describe the alleged right, identify who has it, and delineate its boundaries as a right supposed to trump other goods, interests, and the wellbeing or rights of others. Second, they have neglected, or at best hugely underestimated, the casualties who would be, and in some places already are being, created by the success of their campaign. Third, they proceed on an …

International Decisions: Well Blowout Control Claim. Un Doc. S/Ac.2/Dec.40, 36 Ilm 1343 (1997). United Nations Compensation Commission, Governing Council, December 17, 1996., Roger P. Alford

Journal Articles

The UN Compensation Commission Governing Council held Iraq liable for oil field damages in Kuwait, including damage caused by Allied bombing because a direct link existed between Iraqi conduct and the damage. The panel held that reasonable expenses can include extraordinary costs because Kuwait took reasonable steps in mitigating its expenses. Salaries to permanent Kuwaiti personnel are not a direct result of Iraq's conduct and cannot be reimbursed.

The Commerce Clause Meets The Delhi Sands Flower-Loving Fly, John C. Nagle

Journal Articles

Is the Endangered Species Act constitutional? The D.C. Circuit considered that question in National Association of Home Builders v. Babbitt in 1997. More specifically, the case considered whether the congressional power to regulate interstate commerce authorized the ESA's prohibition upon building a large regional hospital in the habitat of an endangered fly that lives only in a small area of southern California. The three judges on the D.C. Circuit approached the question from three different perspectives: the relationship between biodiversity as a whole and interstate commerce, the relationship between the fly and interstate commerce, and the relationship between the hospital …

On Teaching Legal Ethics With Stories About Clients, Thomas L. Shaffer

Journal Articles

The comparison I have in mind is between what goes on at Notre Dame and what goes on in one of Professor James Boyd White's law and literature classes at the University of Michigan. Both classes use provocation. White provokes his students with an array of assigned readings, all of them about people, not all of them about law, ranging from Homer and Plato to Fowler on the split infinitive and the autobiography of Dick Gregory. We provoke our students with a parade of accounts from our members, accounts of people they think they can help.

White's enterprise is, I …

Public Reason, Abortion, And Cloning, John M. Finnis

Journal Articles

Every society, liberal or illiberal, takes a public stand on the question whether abortion is or is not a form of criminal activity. If that question were left to private judgment, people who judge it homicide would be entitled to use force to prevent their fellow citizens engaging in it.

The need for the law and public policy to take a stand has become more and more obvious for two reasons. The first has to do with the standard purpose of abortion, as that term is commonly used: to end the life of a fetus/unborn child. As Jeffrey Reiman argues …

Does A Conspiracy To Terminate At-Will Employment Constitute An Injury To Property? An Analysis Of Haddle V. Garrison, Barbara J. Fick

Journal Articles

This article previews the Supreme Court case Haddle v. Garrison, 525 U.S. 121 (1998). The author expected the Court to determine whether the termination of an at-will employee can be compensible under 42 U.S.C. § 1985, one of the Reconstruction Era Civil Rights Act.

Joint Custody: Bonding And Monitoring Theories, Margaret F. Brinig, F. H. Buckley

Journal Articles

Symposium: Law and the New American Family Held at Indiana University School of Law - Bloomington Apr. 4, 1997

Tribal Court Praxis: One Year In The Life Of Twenty Tribal Courts, Nell Jessup Newton

Journal Articles

For a presentation, I read the eighty-five cases published in the Indian Law Reporter during 1996. I was struck by the diversity of the issues, the difficulty, complexity and subtlety of the choice of law, and other procedural and substantive issues addressed. I was most impressed by the richness of the dialogue in tribal court opinions—a dialogue between the court and the tribal councils, tribal people, and members of the bar. One may also read the opinions as initiating a conversation with the general public. A conversation requires listening, however.

In this article, I will bring to light the work …

The Supreme Court's Impact On Marriage, 1967-90, Margaret F. Brinig

Journal Articles

In the twenty years following Loving, the Supreme Court decided a number of cases dealing with the family. Although the Court reasoned that it was protecting marriage and extending such protection to other forms of families, the perverse effect of these decisions was to weaken the most traditional family type of all, the nuclear family. Adults, and particularly pregnant women and unwed fathers, triumphed in this move towards autonomy and rights. The vanquished included those who depended upon the family for love and sustenance: minor children, elderly adults, and longtime homemakers.

This paper discusses these cases from a family law …

Fundamental Rights, Moral Law, And The Legal Defense Of Life In A Constitutional Democracy, Martin Rhonheimer, Paolo G. Carozza

Journal Articles

Article by Martin Rhonheimer, translated by Paolo G. Carozza.

Natural Law And The Ethics Of Discourse, John M. Finnis

Journal Articles

This essay argues that Plato's critical analysis of the ethics of discourse is superior to Habermas', and more generally that Habermas has no sufficient reason to propose or suppose the philosophical superiority of "modernity." The failure of Hume and Kant and much modern philosophy to understand the concept and content of reasons for action underlies Habermas' attempted distinction between ethics and morality, and Rawls' concept of public reason. A proper study of discourse also yields a metaphysics of the person, and thus reinforces the ethics.

Federal Criminal Conspiracy, Todd R. Russell, O. Carter Snead

Journal Articles

Under 18 U.S.C. § 371, it is a crime for "two or more persons [to] conspire . . . to commit any offense against the United States, or to defraud the United States, or any agency thereof in any manner or for any purpose."

This Article first outlines, in Section I, the basic elements of a conspiracy offense under § 371. Defenses available to challenge charges brought under the statute are discussed in Section III of the Article. Section IV presents the evidentiary and constitutional guidelines governing admissibility of co-conspirator hearsay testimony at trials involving conspiracy charges. Section V surveys …

Whitehead's Metaphysics And The Law: A Dialogue, Jay Tidmarsh

Journal Articles

The purposes of this Article are to explore the relationship between Alfred North Whitehead's process philosophy and the nature of law, and to develop from that exploration a theory of "process jurisprudence." To some extent, this Article is a process of interpretation and imagination. Whitehead himself devoted little attention to the nature of law. Therefore, rather than attempting to declare definitively the implications of Whitehead's thought for the nature of law, this Article is structured in the form of a dialogue between "Whitehead" and a lawyer whom I have called "Chris." In Part II, as he discusses his system of …

The Jurisprudence Of John Howard Yoder, Thomas L. Shaffer

Journal Articles

John Howard Yoder, prophet and theologian, died in his office at Notre Dame on December 30, 1997, the day after his seventieth birthday. Peter Steinfels's obituary in the New York Times of January 7, 1998, described my friend and colleague Yoder as "a Mennonite theologian whose writings on Christianity and politics had a major impact on contemporary Christian thinking about the church and social ethics." Steinfels did not describe Yoder's thought as jurisprudence; neither, for that matter, did Yoder. But there was (and is), throughout Yoder's scholarship, an implicit theology of law, a jurisprudence. A jurisprudence that is particularly noticeable …

Playing Noah, John C. Nagle

Journal Articles

The biblical story of Noah and the ark has been cited by numerous writers as a justification for the protections contained in the Endangered Species Act. In that story, Genesis reports that God instructed Noah to save two of every species from the flood that would destroy life on earth, and that after doing so God established a covenant with Noah and the animals that were saved. The story has inspired writers and activists to posit a duty to imitate Noah today when we struggle to provide the resources and the will to protect all species, however popular or obscure, …

Faith Tends To Subvert Legal Order, Thomas L. Shaffer

Journal Articles

Two old friends and colleagues died in the spring of 1997. Both share with me a Baptist boyhood and a Roman Catholic middle age. Both showed me that the relevance of religion to a lawyer's work is best approached with believers' irony.

Frank Booker, descendant of Cherokee Indians, Missouri farmers, railroaders, and Baptist ministers, taught law at Stetson and then Notre Dame, with a style all his own and with a steady eye on how important the law is. After his funeral, one of his students remembered for me a day in Frank's first-year torts class. They were several weeks …

The 1988 U.N. Convention Against Illicit Traffic In Narcotic Drugs And Psychotropic Substances - A Ten Year Perspective: Is International Cooperation Merely Illusory?, Jimmy Gurule

Journal Articles

On the ten-year anniversary of the adoption of the 1988 U.N. Drug Convention, this Article analyzes whether signatory- parties have complied with the duties and obligations imposed thereunder, and, in particular, whether the Convention has enhanced international cooperation in narcotics enforcement. Part I of this Article examines the legal obligations and duties imposed under the 1988 U.N. Drug Convention, with special emphasis on the provisions aimed at criminalizing money laundering and at forfeiture of illicit drug proceeds and instrumentalities of narcotics trafficking. Additionally, Part I examines the requirement that parties afford one another the "widest measure of mutual legal assistance …

Endangered Species Wannabees, John Copeland Nagle

Journal Articles

Environmental law and theories of statutory interpretation have developed side by side in the United States during the past twenty-five years. Many of the leading environmental law cases are also statutory interpretation cases. China is different. China has enacted many environmental statutes, often patterned after foreign laws such as those in the United States, but there are no Chinese environmental law statutory interpretation cases.

This article examines why there are no such cases, and what we may learn from that fact. I am indebted to the work of Professor Stewart, whose engaging article in this symposium issue combines three of …