Law Commons^™

Law And Theology: Reflections On What It Means To Be Human From A Franciscan Perspective, John J. Coughlin

Journal Articles

When I was first asked in March of 2000 to speak at this conference on the topic of "law and theology," many thoughts crossed my mind. I could address: the role of religion in American political life, euthanasia, medieval canon law and theology, the death penalty, the Jewish origins of the Pauline perspective on law, the ethics of DNA experimentation, Muslim theology and law, the relation between Marxist political theory and Christian eschatology, or several other "light" issues. Upon second thought, perhaps a more straight-forward approach would be beneficial. I might review the plan of salvation history, and then as …

States' Rights In The Twenty-First Century, Jay Tidmarsh, Mark Racicot, Robert Miller, Michael Greve

Journal Articles

My name is Jim Schueller and I'm the Symposium Editor of the Law School Journal of Legislation and every two years we organize a symposium to discuss relevant issue of public policy and the topic this year is States Rights in the 21st Century.

Well, way back in the 18th century when the framers drafted the Constitution they created a unique system of governing where power was shared between the states which already existed and the newly created federal government. The framers in their day debated the proper allocation of power between these two governments and today, two hundred eleven …

Catholic Health Care And The Diocesan Bishop, John J. Coughlin

Journal Articles

Over the course of the last decade, the provision of health care in the United States has been undergoing a radical transformation. The days when an insurer, such as Blue Cross and Blue Shield, paid a standard fee to a physician who provided a specified service to an individual patient are passing rapidly. This fee-for-service concept, which characterized American health care from the end of World War II until the 1990s, is being supplanted by a variety of arrangements that fall under the general rubric of "managed care." The fundamental approach of managed care is to provide the patient with …

A Comparative Constitutional Law Canon, Donald P. Kommers, John E. Finn

Journal Articles

The article discusses what types of legal cases constitute a “canon” on American constitutional theory and comparative constitutional law, examples of case law that illustrate important developments in the two subjects. It describes the process taken by the article's authors to select a small sampling of 90 “canon” cases for their course book on American constitutional law, which is designed for the academic community and for undergraduate students enrolled in a traditional liberal arts curriculum.

Natural Law, Marriage, And The Thought Of Karol Wojtyla, John J. Coughlin

Journal Articles

This Article examines the loss of the natural law perspective from legal theory and the movement towards liberal theory. The Article continues by analyzing two features of the natural law tradition as described in the philosophical writings of Karol Wojtyla. The first feature concerns marriage and family as the fundamental human community. The second considers marriage as a virtuous relationship. The Article concludes with practical suggestions for the legal profession and legal education with regard to counseling clients about marriage.

What O'Clock I Say: Juridical Epistemics And The Magisterium Of The Church, Robert E. Rodes

Journal Articles

Legal pronouncements to the effect that such and such is the case can be divided into three categories, which the paper calls normative, constitutive, and epistemic. The paper defines these three legal categories, explores examples of each of in the law of the state, and then examines church pronouncements under the same categories to see what light the analogy of secular law can shed on them. The Church's assertions of authority regarding faith and morals are epistemic in nature. Epistemic pronouncements by authority, whether in Church or state, are binding on anyone who is not better informed than the author, …

A Comparison Of The Administrative Law Of The Catholic Church And The United States, John J. Coughlin

Journal Articles

Some years ago, an international symposium of jurists described administrative law as encompassing "the entire range of action by government with respect to the citizen or by the citizen with respect to the government, except for those matters dealt with by the criminal law, and those left to private civil litigation where the government's only participation is in furnishing an impartial tribunal with the power of enforcement."

The broad parameters of the concept of administrative law attest to its importance in any legal system. Indeed, for at least the past fifty years, comparative legal scholars have focused on diverse national …

School Choice, The First Amendment, And Social Justice, Nicole Stelle Garnett, Richard W. Garnett

Journal Articles

This Article is intended to be a primer on the legality and morality of educational choice—"School Choice in a Nutshell," if you will. We are resigned to being pre-empted by the tireless work of grassroots activists, the choices of voters, and the decisions of judges. Still, we hope, in somewhat polemical fashion, to establish two basic claims. First, school choice, properly understood, is constitutional. And second, school choice is both sensible and just.

In the end, we believe "school choice . . . is essential to achieving equality of opportunity for American children, rich or poor. School choice treats the …

International Perspective, Douglass Cassel

Journal Articles

I don't think it's accurate to say this panel has six experts on incarceration. I think we really have five experts and one dilettante. I know a bit about international human rights law. I am not an expert on prisons and I am overwhelmed by the expertise and the statistics that we've just received and about which I hope to learn a great deal more. So I apologize to you in advance for supplying nothing more than impressions of the international realities of incarceration. I will then skip quickly ahead to the law.

A Dialogic Defense Of Alden, Jay Tidmarsh

Journal Articles

The opening paragraphs of the essay:

I find myself in the odd position of arguing that Alden v. Maine' is right, or at least not wrong. Do not misunderstand-I do not like the result in Alden any more than the next guy. But to not like the result and to argue that Alden is wrong as a matter of constitutional principle are two different matters. I am willing to argue that Alden is consistent with, albeit not compelled by, constitutional principle.

Implicit in the last sentence is the assumption that, had Alden been decided in accordance with Justice Souter's rather …

Formalism And Realism In Commerce Clause Jurisprudence, Barry Cushman

Journal Articles

This Article attempts a reconceptualization of developments in Commerce Clause jurisprudence between the Civil War and World War II by identifying ways in which that jurisprudence was structurally related to and accordingly deeply influenced by the categories of substantive due process and dormant Commerce Clause doctrine. Antecedent dormant Commerce Clause jurisprudence set the terms within which Commerce Clause doctrine was worked out; coordinate developments in substantive due process doctrine set limits upon the scope of Commerce Clause formulations and thus played a critical and underappreciated role in maintaining the federal equilibrium. The subsequent erosion of those due process limitations vastly …

More's Skill, Thomas L. Shaffer

Journal Articles

Robert Bolt chose a phrase from a sixteenth century poet named Robert Whittinton for the title of his modem play about Thomas More: "[A] man of an angel's wit and singular learning; I know not his fellow. For where is the man of that gentleness, lowliness, and affability? And as time requireth a man of marvellous mirth and pastimes; and sometimes of as sad gravity: a man for all seasons."

Bolt's title suggests that he took a gamble on the possibility that More would have modern, universal appeal. I have been interested in how that gamble worked out. If you …

A Tribute To A Friend And Colleague: Frank Beytagh, Fernand N. Dutile

Journal Articles

I am delighted to say a few words on this wonderful occasion honoring Professor Francis X. Beytagh. He and I became colleagues at Notre Dame in 1971. In twenty-nine years of friendship, Frank and Diane have shared with Brigid and me much joy—and significant sadness. Today's ceremony brims with joy, and Brigid and I are so pleased that we could be here to share joy yet again with Frank and Diane.

His intellectual depth and practical wisdom find consistent expression through his indefatigable devotion to mission. I have known many people with some of these qualities, but it is rare …