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Full-Text Articles in Law

Universal Jurisdiction: Questions Of Blind Universality, Makau Wa Mutua Jul 2001

Universal Jurisdiction: Questions Of Blind Universality, Makau Wa Mutua

Journal Articles

No abstract provided.


The Poetics Of The Pragmatic: What Literary Criticisms Of Law Offers Posner, Guyora Binder Jul 2001

The Poetics Of The Pragmatic: What Literary Criticisms Of Law Offers Posner, Guyora Binder

Journal Articles

The process by which we represent our society's will and welfare in the medium of law is an imaginative and expressive one, narrating the path from a virtuous past to a decent future, informed by aesthetic judgment. In Literary Criticisms of Law, Guyora Binder and Robert Weisberg argued that, because law is literary in this sense, scholars can use the methods of literary criticism to "read" the law and to subject it to critical evaluation and reflective aesthetic judgment. In reviewing that book, Judge Richard Posner reasserted his long-held position that it is most useful to evaluate law economically rather …


Racial Purity Laws In The United States And Nazi Germany: The Targeting Process, Judy Scales-Trent May 2001

Racial Purity Laws In The United States And Nazi Germany: The Targeting Process, Judy Scales-Trent

Journal Articles

No abstract provided.


The Rwanda Tribunal: A Critical Assessment, Makau Wa Mutua Apr 2001

The Rwanda Tribunal: A Critical Assessment, Makau Wa Mutua

Journal Articles

No abstract provided.


Of Duncan, Peter And Thomas Kuhn, John Henry Schlegel Mar 2001

Of Duncan, Peter And Thomas Kuhn, John Henry Schlegel

Journal Articles

No abstract provided.


Justice Under Siege: The Rule Of Law And Judicial Subservience In Kenya, Makau Wa Mutua Feb 2001

Justice Under Siege: The Rule Of Law And Judicial Subservience In Kenya, Makau Wa Mutua

Journal Articles

The piece examines the tortured history of the judiciary in Kenya and concludes that various governments have deliberately robbed judges of judicial independence. As such, the judiciary has become part and parcel of the culture of impunity and corruption. This was particularly under the one party state, although nothing really changed with the introduction of a more open political system. The article argues that judicial subservience is one of the major reasons that state despotism continues to go unchallenged. It concludes by underlining the critical role that the judiciary has to play in a democratic polity.


Environmental Certification Systems And U.S. Environmental Law: Closer Than You May Think, Errol E. Meidinger Feb 2001

Environmental Certification Systems And U.S. Environmental Law: Closer Than You May Think, Errol E. Meidinger

Journal Articles

Many industrial organizations are committing to achieve improved environmental performance through non-governmentally instituted environmental certification programs. Such programs typically define the environmental standards that firms must meet as well as the organizational mechanisms required to achieve and "certify" compliance. Well known examples include the chemical industry's "Responsible Care" program, the International Organization for Standardization's "ISO 14000" environmental management program, and the Forest Stewardship Council's well-managed forests program.

Because of their ostensibly private and voluntary nature, environmental certification programs are often presumed to be separate and distinct from law. In fact, however, they are deeply intertwined with law, and seem likely …


Patents For Chemicals, Pharmaceuticals And Biotechnology: Fundamentals Of Global Law, Practice And Strategy By Philip W. Grubb, Michael J. Malinowski Jan 2001

Patents For Chemicals, Pharmaceuticals And Biotechnology: Fundamentals Of Global Law, Practice And Strategy By Philip W. Grubb, Michael J. Malinowski

Journal Articles

No abstract provided.


Public Policy Implications Of Liability Regimes For Injuries Caused By Persons With Alzheimer's Disease, Edward P. Richards Jan 2001

Public Policy Implications Of Liability Regimes For Injuries Caused By Persons With Alzheimer's Disease, Edward P. Richards

Journal Articles

No abstract provided.


A Pragmatic Justification Of The Judicial Hunch, Mark C. Modak-Truran Jan 2001

A Pragmatic Justification Of The Judicial Hunch, Mark C. Modak-Truran

Journal Articles

Judges currently face a daunting task. On the one hand, they are increasingly aware of the indeterminacy of the law, while on the other hand, they face an explosion of fact. Judges are floating on shaky legal timbers in a sea of documents, deposition transcripts, affidavits, oral courtroom testimony, and expert opinions. The explosion of fact alone presents monumental problems for deciding cases without unduly simplifying or reducing this factual complexity. For example, both federal and state judges are implementing case management systems to deal with their crushing case loads and the increasing complexity of their cases. In addition, there …


Constitutionalism Of The European Union: Judicial Legislation And Political Decision-Making By The European Court Of Justice, Christoph Henkel Jan 2001

Constitutionalism Of The European Union: Judicial Legislation And Political Decision-Making By The European Court Of Justice, Christoph Henkel

Journal Articles

The focus of this article shall be the case law of the European Court of Justice. Despite recent proposals as well as other actions of the Member States to reform the Community Treaties, the expansion of judicial review by the European Court of Justice remains the driving force behind the development of constitutionalism of the European Union. In fact, the European Court of Justice and its case law play the most dominant and consistent role in the integration process. In doing so, the case law of the Court of Justice in part reflects the judicial activism comparable to early U.S. …


A Matter Of Class: The Impact Of Brown V. Mclean On Employee Discharge Cases, Christina M. Sautter Jan 2001

A Matter Of Class: The Impact Of Brown V. Mclean On Employee Discharge Cases, Christina M. Sautter

Journal Articles

No abstract provided.


On Elián And Aliens: A Political Solution To The Plenary Power Problem, Victor C. Romero Jan 2001

On Elián And Aliens: A Political Solution To The Plenary Power Problem, Victor C. Romero

Journal Articles

The poignant story of a little boy fished out of the sea after losing his mother to the elements captured the country's imagination and ignited a political firestorm. The Elián González saga drew conflicting opinions from nearly every branch of American local, state, and federal governments.

This article takes no specific position on Elián's situation. Rather, this artivle values the González story for putting a human face on often faceless legal issues. More specifically, Elián's saga raises the following important question: When should the right of the human being to be treated as an individual trump the right of government …


Managed Care Liability For Breach Of Fiduciary Duty After Pegram V. Herdrich: The End Of Erisa Preemption For State Law Liability For Medical Care Decision Making, Edward P. Richards, Thomas R. Mclean Jan 2001

Managed Care Liability For Breach Of Fiduciary Duty After Pegram V. Herdrich: The End Of Erisa Preemption For State Law Liability For Medical Care Decision Making, Edward P. Richards, Thomas R. Mclean

Journal Articles

No abstract provided.


Protecting The Performers: Setting A New Standard For Character Copyrightability, Mark Bartholomew Jan 2001

Protecting The Performers: Setting A New Standard For Character Copyrightability, Mark Bartholomew

Journal Articles

Copyright law protects expressions of ideas, but not the idea itself. Legal disputes over characters arise in the continuum between an idea for a character that has not been expressed at all, and an idea that has been given complete form and shape. The inconsistent common law tests developed to assess character copyrightability demonstrate the difficulty in pinpointing where the dividing line between an undeveloped idea and a sufficiently expressed character should be set. This Article offers a new paradigm for determining character copyrightability, particularly in the case of characters shaped through live performance, that tracks the Hegelian concept of …


Mirror, Mirror: Using Non-Traditional Reflective Exercises, Kim Diana Connolly Jan 2001

Mirror, Mirror: Using Non-Traditional Reflective Exercises, Kim Diana Connolly

Journal Articles

No abstract provided.


Why Retire The Feminization Of Poverty Construct?, Athena D. Mutua Jan 2001

Why Retire The Feminization Of Poverty Construct?, Athena D. Mutua

Journal Articles

The "feminization of poverty" concept should be retired, if it has not already been so. It should be retired, even though the concept has been extremely powerful as a discursive construct. In a phrase, the idea captured a seemingly universal phenomenon, inspired theoretical research into the nexus between women and poverty, and summoned coalitions of women by marking an agenda for, and among, women across the boundaries of race, ethnicity, and nationality. In short, it has been a war cry, demanding and framing analyses of women's poverty, and justifying and inspiring women's collective action. Nevertheless, the feminization of poverty construct …


Subjectship, Citizenship, And The Long History Of Immigration Regulation, Robert J. Steinfeld Jan 2001

Subjectship, Citizenship, And The Long History Of Immigration Regulation, Robert J. Steinfeld

Journal Articles

No abstract provided.


Insurer Moral Hazard In The Workers' Compensation Crisis: Reforming Cost Inflation, Not Rate Suppression, Martha T. Mccluskey Jan 2001

Insurer Moral Hazard In The Workers' Compensation Crisis: Reforming Cost Inflation, Not Rate Suppression, Martha T. Mccluskey

Journal Articles

This article challenges the standard story of the insurance crisis that led to the near-collapse and major reform of a number of states’ workers’ compensation programs in the 1980s and 1990s.

In the prevailing account, insurance costs rose due to expanding costs of benefits for injured workers’, much of which was blamed on wasteful or abusive "moral hazard" by workers and their lawyers and doctors. Because state regulators had substantial power to control insurance rates, this account claims governments tried to suppress prices in the face of rising benefit costs in a misguided attempt to avoid political trade-offs between labor …


Re-Interpreting The Effect Of Rights: Career Narratives And The Americans With Disabilities Act, David M. Engel, Frank W. Munger Jan 2001

Re-Interpreting The Effect Of Rights: Career Narratives And The Americans With Disabilities Act, David M. Engel, Frank W. Munger

Journal Articles

No abstract provided.


The Road From Welfare To Work: Informal Transportation And The Urban Poor, Nicole Stelle Garnett Jan 2001

The Road From Welfare To Work: Informal Transportation And The Urban Poor, Nicole Stelle Garnett

Journal Articles

Individuals struggling to move from welfare to work face numerous obstacles. This Article addresses one of those obstacles: lack of transportation. Without reliable transportation, many welfare recipients are unable to find and maintain jobs located out of the reach of traditional forms of public transportation. Professor Garnett argues that lawmakers should remove restrictions on informal van or jitney services, allowing entrepreneurs to provide low-cost transportation to their communities. This reform would not only help people get to work, but it could also provide jobs for low-income people.


Empowering United States Courts To Hear Crimes Within The Jurisdiction Of The International Criminal Court, Douglass Cassel Jan 2001

Empowering United States Courts To Hear Crimes Within The Jurisdiction Of The International Criminal Court, Douglass Cassel

Journal Articles

United States courts have only incomplete and uneven jurisdiction, most acquired piecemeal and only in recent years, to prosecute genocide, war crimes and crimes against humanity committed outside our borders. Recent developments in international law and practice-especially the heightened commitment of democracies including the United States to end impunity for atrocities, and the imminent prospect of a permanent International Criminal Court (ICC) with worldwide jurisdiction-suggest the need to expand and rationalize the jurisdiction of U.S. courts to make it coextensive with that of the ICC.

It now appears all but certain that the ICC will come into being in the …


The Practical Impact Of The Common Good In Catholic Social Thought, John J. Coughlin Jan 2001

The Practical Impact Of The Common Good In Catholic Social Thought, John J. Coughlin

Journal Articles

As an introduction to the general panel discussion, I would like to pose the following question. Is the notion of the common good in Catholic social thought merely a nice sounding theory, or does it have any real and practical impact?

The Vatican II document Gaudium et Spes offers this definition of the common good: "the sum of those conditions" which allow people, either as groups or as individuals, to reach their fulfillment more fully and more easily. This notion of the common good places a primacy on the flourishing of individual human beings-spiritually, intellectually, culturally, and financially-through participation in …


In Search Of Prince Charming, Margaret F. Brinig Jan 2001

In Search Of Prince Charming, Margaret F. Brinig

Journal Articles

This response begins by addressing the different perspectives as presented by the panel “Sex, Lies and Exploitation.” One of the panelists, professor Plasencia, presented a powerful and graphic documentation of digital communication’s influence on the sex industry. Some of the images involved explicitly portrayed the sex trade while in others, it was portrayed more subtly as an arranged or mail-order marriage. The author's response to professor Plasencia is mixed. On the one hand, it is rather easy these days for one to mistakenly encounter a sexually explicit website. On the other hand, however, since little information exists on how widespread …


Virtue And The Constitution Of The United States, John M. Finnis Jan 2001

Virtue And The Constitution Of The United States, John M. Finnis

Journal Articles

In this Article, Finnis reflects on the following five questions: (1) Does the Constitution require or presuppose, or thwart or even forbid, a formative project of government inculcating in citizens the civic virtue necessary to promote and sustain a good society?; (2) To what extent can the institutions of civil society support or even supplant government in inculcating civic virtue?; (3) What is the content of the civic virtue that should be inculcated in circumstances of moral disagreement, and how does it relate to traditional moral virtue?; (4) Does it include respect for and appreciation of diversity?; (5) Should a …


Lochner, Liquor, And Longshoremen: A Puzzle In Progressive Era Federalism, Barry Cushman Jan 2001

Lochner, Liquor, And Longshoremen: A Puzzle In Progressive Era Federalism, Barry Cushman

Journal Articles

In 1890, the Supreme Court shocked and thrilled the civilized world with the announcement that dry states could not prohibit the sale of liquor shipped in from outside the state. So long as the out-of-state goods remained in their "original packages," the Court held they retained their character as interstate commerce subject only to federal regulation. The consequences for the cause of local sobriety were, predictably, catastrophic. The proliferation in temperance territory of "original package saloons," at which one could purchase liquor free from the superintendence of local liquor authorities, was appalling to dry eyes. Members of Congress immediately proposed …


One Of A Kind - Professor Emeritus Charles E. Rice, Robert E. Rodes Jan 2001

One Of A Kind - Professor Emeritus Charles E. Rice, Robert E. Rodes

Journal Articles

In the spring of 1959, when I was faculty advisor of the law review (then called the Notre Dame Lawyer), and my future colleague Bob Blakey was the student associate editor, we worked together on an article called A.I.D.—An Heir of Controversy. The subject, artificial insemination from a donor, was interesting, the treatment was at once lively, rueful, and orthodox, and the conclusion was an engaging shrug of the shoulders: "Upon that note . . . your writer respectfully throws in the towel.'' The author, a graduate of Boston College Law School taking an advanced degree at New York University, …


On Law And Chastity, Robert E. Rodes Jan 2001

On Law And Chastity, Robert E. Rodes

Journal Articles

When Dwight Eisenhower was President, and the baby boomers of today were but gleams in the eyes of their monogamous parents, it was well understood that chastity was the prevailing social norm.

On the whole, the standard was reinforced by the social ambiance. It was not at all difficult for people of relatively chaste mind to go for days, sometimes weeks, without encountering much of anything at which they could justly take offense. In most environments, social discourse was relatively free of explicit sex, and even sexual innuendo was far from pervasive. Films and broadcasting were closely censored, and detailed …


Religious Claims And The Dynamics Of Argument, M. Cathleen Kaveny Jan 2001

Religious Claims And The Dynamics Of Argument, M. Cathleen Kaveny

Journal Articles

This Article investigates the questions whether and when religious claims may enter into public debate about important political issues by considering the purposes of argument in the public square. These purposes include: (1) argument as self-disclosure; (2) argument as persuasion; and (3) argument as bulwark against engagement with the ideas of others. The Article argues that restrictions on the use of religious claims in public deliberations and discussion impede the legitimate functions of public argument as self-disclosing and persuasive activities. In contrast, such restrictions contribute to the use of argument as bulwark, which is arguably destructive to public deliberation in …


A Tribute To Andrew W. Mcthenia, Jr., Thomas L. Shaffer Jan 2001

A Tribute To Andrew W. Mcthenia, Jr., Thomas L. Shaffer

Journal Articles

Uncas picked up a five-letter name when he was a boarding school student in Orange, Virginia. By now, it is the way his friends and colleagues, his students and his clients, his wife and his children and his neighbors, identify him. It works throughout the United States and in Canada. I would not be surprised to see it work in, say, the offices of the European Union in Salzburg or in the former Soviet Union. (It occurs to me that this universal name for Andrew W. McThenia, Jr., a name his boarding-school classmates borrowed from James Fenimore Cooper, shares brevity …