Law Commons^™

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 …

The Wasted Sacrifice Of Lessors' Lost Profit Claims In Bankruptcy, Marie T. Reilly

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Bankruptcy Code section 502(b)(6) sets the maximum allowable amount of a real property lessor's claim for damages arising for breach of lease in a tenant's bankruptcy case. To the extent a lessor's damages claim under nonbankruptcy law exceeds the maximum amount, it is disallowed. The implicit premise for such disallowance is that real property lessors' damages claims are less worthy of respect in bankruptcy than other claims for damages against the debtor. Real property leases are legally distinct from leases of personal property or other contractual relationships that allocate property rights. But, it does not obviously follow from the distinction …

Aren't You Latino: Building Bridges Upon Common Misperceptions, Victor C. Romero

Journal Articles

This article addresses minority on minority oppression and itragroup animosity. The author discusses ways in which communities of color can use common misperceptions to their advantage as a bridge to building a larger community.

South African Perspectives: Its Prospects And Its Income Tax System, Samuel C. Thompson Jr.

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No abstract provided.

The Voice Of Willard Hurst, Alfred S. Konefsky

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No abstract provided.

Sex & Surveillance: Gender, Privacy & The Sexualization Of Power In Prison, Teresa A. Miller

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In prison, surveillance is power and power is sexualized. Sex and surveillance, therefore, are profoundly linked. Whereas numerous penal scholars from Bentham to Foucault have theorized the force inherent in the visual monitoring of prisoners, the sexualization of power and the relationship between sex and surveillance is more academically obscure. This article criticizes the failure of federal courts to consider the strong and complex relationship between sex and surveillance in analyzing the constitutionality of prison searches, specifically, cross-gender searches.

The analysis proceeds in four parts. Part One introduces the issues posed by sex and surveillance. Part Two describes the sexually …

Five Years After Beijing: A Report Card On Women’S Human Rights, Athena D. Mutua

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No abstract provided.

What Is Twail?, Makau W. Mutua

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The piece seeks to conceptualize the insurgent movement in international law known as Third World Approaches to International Law. Driven by scholars from the Third World, TWAIL rejects the traditional tenets and assumptions of traditional international law and argues for a re-imagination of the law of nations to purge it of racial and hegemonic precepts and biases to create a truly universal corpus that embraces inclusivity and empowerment. The movement turns away from the imperialist and colonialist foundation of international law. It argues that international law must be devoid of oppression, exploitation, and domination. The piece is among the first …

Subsidized Lives And The Ideology Of Efficiency, Martha T. Mccluskey

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No abstract provided.

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

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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, …

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

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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 …

The Basic Law: A Fifty Year Assessment, Donald P. Kommers

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In 1949 the new German Basic Law raised many questions. Could a newly minted constitution-mere words on paper-breathe new life into a people devastated by war? Would it serve as a stable framework of government? Would it promote respect for human rights and popular government? Would it foster internal political unity? Half a century later all these questions can be answered in the affirmative. The Basic Law is one of the world’s most respected and imitated constitutions and it has emerged as the vital center of Germany's constitutional culture. It is invoked repeatedly in parliamentary debates and resorted to in …

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

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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 …

Civil Rights And Human Rights: A Call For Closer Collaboration, Douglass Cassel

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Those of you who may be familiar with my commentaries know that my usual topics are mass murderers overseas or U.S. foreign policy toward them. Today, however, I would like to focus on something closer to home-the history of and prospects for fruitful collaboration between the civil rights movement and the international human rights movement. My purpose is to encourage dialogue between civil rights and human rights lawyers. As a sometime civil rights lawyer myself, I am convinced that such a dialogue could be productive.

We might start by distinguishing human rights from civil rights. In customary American usage, the …

On The Incoherence Of Legal Positivism, John M. Finnis

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Legal positivism is an incoherent intellectual enterprise. It sets itself an explanatory task which it makes itself incapable of carrying through. In the result it offers its students purported and invalid derivations of ought from is.

In this brief Essay I note various features of legal positivism and its history, before trying to identify this incoherence at its heart. I do not mean to renege on my belief that reflections on law and legal theory are best carried forward without reference to unstable and parasitic academic categories, or labels, such as "positivism" (or "liberalism" or "conservatism," etc.). I use the …

Taking Pierce Seriously: The Family, Religious Education, And Harm To Children, Richard W. Garnett

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Many States exempt religious parents from prosecution, or limit their exposure to criminal liability, when their failure to seek medical care for their sick or injured children is motivated by religious belief. This paper explores the question what, if anything, the debate about these exemptions says about the state's authority to override parents' decisions about education, particularly religious education. If we accept, for example, that the state may in some cases require medical treatment for a child, over her parents' objections, to avoid serious injury or death, should it follow that it may regulate, or even forbid, a child's religious …

More's Skill, Thomas L. Shaffer

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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 …

Government Lawyers, Robert E. Rodes

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I am grateful to Professor Lee for the opportunity to comment on this fine set of papers regarding the ethical obligations of government lawyers. These papers shed light on many interesting aspects of serving the government. Professors Shaffer and Lee explore the peculiar challenges to integrity that a lawyer experiences when he has a client who can chop his head off. The challenges are less today, but a lawyer with large student loans to pay may not realize that they are. Professor Hazard points out that government lawyers are government employees with the responsibilities that government employment entails. Professor Green …

The Primacy Of Political Actors In Accommodation Of Religion, William K. Kelley

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This article focuses on the relationship between freedom of religion and the norm against non-establishment of religion in the context of government efforts to accommodate religious practices. It analyzes First Amendment doctrine in this area, and concludes that the Supreme Court has consistently been generous in permitting accommodations of religion when they are the product of judicial decisions; in other words, at least until recently the Court has been open to mandatory accommodations so long as they are ordered by judges. By contrast, the Court has long been suspicious of - and far from generous in permitting - accommodations as …

Choosing The Lesser Evil: Comments On Besharov's "Child Abuse Realities", Margaret F. Brinig

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Determining the degree of state intervention into intra-family decision making requires an unhappy choice between allowing abuse to continue or interfering with some families that would be better left alone. Mr. Besharov introduces the possible harms associated with the increased involvement of the state but fails to fully comprehend the circumstances that necessitate such involvement. Evils bracket the phenomenon discussed in Mr. Besharov's paper and this one. The difference in our approach lies in the choice we think is the lesser evil of the two, not that we think that either the harms associated with state involvement or the risk …

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

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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 …

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

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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.

The Proliferation Of International Courts And Tribunals: International Adjudication In Ascendance, Roger P. Alford

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While there has been a significant focus on a few international tribunals, there have been insufficient efforts to compare and contrast the various courts and tribunals. Even a cursory comparison of these tribunals reveals that there are many unanswered questions regarding the interrelationship of these courts and tribunals and, more disturbing, a profound lack of attention to the collective impact these international tribunals are having on the field of international law. That is changing, as is evidenced by the new Project on International Courts and Tribunals at New York University School of Law, but we as an international legal community …

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

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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.