Law Commons^™

Reenchanting International Law, Mark C. Modak-Truran

Journal Articles

I will argue that international law needs religion because it is indeterminate and that international law should not attempt to resolve legal indeterminancy because this would require establishing an official international religion. Given the limitations of this article, however, I will not attempt to provide a comprehensive normative and descriptive account of law and international law to support this claim." My more modest expectations are to provide a normative theory of law to justify the interpretation of international law in cases in which international law is indeterminate.

Lawyers As Prophets, Thomas L. Shaffer

Journal Articles

Legal ethics is about injustice. My effort here is part of the broad, modern academic enterprise, and of the broad, modern professional enterprise now usually called professional responsibility. Both date from the Watergate scandal in the administration of President Richard M. Nixon, and the rejection, by legal academics and practicing lawyers, of the behavior of the President and other lawyers in that affair. Our modern enterprise, like the biblical Exodus, was born in outrage at the abuse of legal power.

In university law schools such as this one, legal ethics is now a discipline characterized by schools of thought on …

To Kill Or Capture Suspects In The Global War On Terror, Mary Ellen O'Connell

Journal Articles

Presents a speech by law professor Mary Ellen O'Connell, delivered at the Case Western Reserve School of Law's War Crimes Research Symposium, February 28, 2003. Legal implications of pursuing terror suspects using military action by the U.S. government; Components of armed conflict; Analysis of the United States' involvement in the internal armed conflict in the Philippines.

Mixed Up About Mixed Motive: What Will Trigger A "Mixed Motive" Analysis In Title Vii Cases? An Analysis Of Desert Palace, Inc. V. Costa, Barbara J. Fick

Journal Articles

This article previews the Supreme Court case Desert Palace, Inc. v. Costa, 539 U.S. 90, 2003. The author expected the Court to clarify and define the circumstances in which it is appropriate to use the "mixed-motive model" to prove a violation of Title VII under the disparate treatment theory.

Contraception As A Mask Of Personhood, Charles E. Rice

Journal Articles

Sometimes you can learn something by teaching Torts. In my case it happened with the Palsgraf case and John Noonan did it. When we reached Palsgraf, I always discussed with the class Professor Noonan's analysis in Persons and Masks of the Law.

Mrs. Palsgraf lost as a matter of law in the Court of Appeals, and Chief Judge Cardozo wrote the opinion. Professor Noonan thinks she lost because her humanity was covered by the abstract persona, the mask, of an "unforeseeable plaintiff." He did not accuse Cardozo of misapplying the rule of law he used, but of myopia in selecting …

Reforming Securities Class Actions From The Bench: Judging Fiduciaries And Fiduciary Judging, Lisa L. Casey

Journal Articles

The attorneys' fees awarded to plaintiffs’ counsel in securities fraud class actions have generated controversy for years. Critics have claimed that enormous fee awards come at the expense of defrauded investors and simply spur extortionate lawsuits against issuers and other potential deep pocket defendants. Commentators also have raised concerns that plaintiffs' class action lawyers manipulated class representatives, persons who had little incentive to monitor class counsel’s activities.

To address these concerns, Congress enacted the Private Securities Litigation Reform Act ("PSLRA"). Among other things, the statute sought to protect absent class members by giving control of the litigation to lead plaintiffs …

Introduction To The Symposium Issue On The Americanization Of International Dispute Resolution, Mary Ellen O'Connell

Journal Articles

With the end of the Cold War and the emergence of the United States as the world's only superpower, we have heard expressions of concern about the great weight of American influence in so many aspects of international life. One area of concern is America's influence on the law and processes of international dispute resolution (IDR). Of all the practice areas in IDR, practitioners and scholars of international arbitration have had the most detailed discussions on this theme to date. Their greatest worry is the growing tendency toward American litigation style in a process that is neither American nor litigation. …

New Opportunities For Obtaining And Using Litigation Reserves And Disclosures, Matthew J. Barrett

Journal Articles

Following the publication of Opportunities for Obtaining and Using Litigation Reserves and Disclosures, which highlighted the helpful information about litigation reserves that a litigator can often detect or discover from an opponent's financial statements, accounting books and records, tax returns, public filings with the Securities and Exchange Commission (the SEC), and auditor, two important regulatory developments occurred in early 2003 that create additional opportunities to obtain information about an opponent's assessments of (i) expected liability in the underlying case or (ii) obligations or settlements in similar cases. First, pursuant to the Sarbanes-Oxley Act of 2002, the SEC issued final regulations …

Is There A New World Court?, Douglass Cassel

Journal Articles

I am pleased to introduce our conference on Human Rights and the Law of War: New Roles for the World Court? Why this conference? And why now? Our conference is prompted by two contrasting phenomena: The caseload of the ICJ seems to have been transformed in the post-Cold War period. The World Court is now busier than ever. It has more cases, increasingly involving questions of human rights or ongoing armed conflict. Yet these three inter-related phenomena—increased caseload, and more cases involving human rights or armed conflict—have been little analyzed or studied. Our purpose is to contribute to public and …

Mental Health Assessment Of Minors In The Juvenile Justice System, Mike Jenuwine, Curtis Heaston, Diane N. Walsh, Gene Griffin

Journal Articles

Recent reports recognize that children and adolescents with undiagnosed mental illnesses make up a significant proportion of youth in the juvenile justice system. In determining how to rehabilitate youth in the juvenile justice system, judges, lawyers, and probation officers are starting to look at mental health problems as one element contributing to delinquent behavior. It is becoming more common for attorneys to request “mental health assessments” for their juvenile clients. Problems arise, however, in determining what specifically constitutes such an assessment, and in deciding what to do with this information once it is obtained. In 2001, the Illinois Cook County …

Promoting Children's Interest Through A Responsible Research Agenda, Margaret F. Brinig

Journal Articles

I deeply wish to see more good empirical work in family law. If our system had all of the money in the world, I would wish to spend it to guarantee happy, healthy children. But since resources are scarce, and children's issues must compete with other interests that range from national security to care for the elderly, I would suggest spending a relatively modest amount to determine what programs would likely prove successful.

Usually public policy follows from the wishes of adults. In family law, this occurs although virtually all the legislation dealing with families and children begins with a …

Pope John Paul Ii And The Dignity Of The Human Being, John J. Coughlin

Journal Articles

Since his election in 1978 as the Successor to the Apostle Peter, His Holiness Pope John Paul II has remained one of the principal protagonists on the global stage for the dignity and value of every human being. Although the popular press and media sometimes have been slow to recognize this message, an online search of the Holy Father's copious encyclicals, addresses, and homilies reveals that he has advocated human dignity literally hundreds of times during the course of his twenty-five year pontificate. In fact, long before his election as Pope, Karol Wojtyla was developing his understanding of the dignity …

Retribution: The Central Aim Of Punishment, Gerard V. Bradley

Journal Articles

When I worked for the Manhattan District Attorney's Office in the early 1980s, criminal sentences were consistently and dramatically too lenient. Though those years marked the ebb tide for the rehabilitative ideal of punishment and indeterminate "zip-to-ten" sentences, only career felons and those convicted of the most serious crimes were candidates for the sentences they justly deserved. Hamstrung by apparently silly rules of constitutional etiquette and bureaucratic sclerosis, the police were eclipsed in the mind of the public by the cold-blooded Everyman, bound only by the law of the jungle and some elusive sense of justice. Ultimately, popular demand required …

"They Are Our Brothers, And Christ Gave His Life For Them": The Catholic Tradition And The Idea Of Human Rights In Latin America, Paolo G. Carozza

Journal Articles

Through the language of human rights, law can both reflect and constitute some of our most basic ideas about the requirements of human dignity and the human desire for freedom. It captures certain culturally embedded understandings about the nature of the human person in society and carries them forward in time through an institutionalized discourse and practice. This is especially so in those legal traditions that have inherited Western law’s historically consistent orientation toward the individual. Law never makes those sorts of claims in a systematically theoretical way, however. Instead, it is a form of praxis, combining theory and practice, …

The Clergy Sexual Abuse Crisis And The Spirit Of Canon Law, John J. Coughlin

Journal Articles

Recent revelations of cases in which Catholic priests have sexually abused minors over the course of the last five decades have drawn intense media scrutiny and public outrage. But discipline of the clergy for sexual offenses is not novel in the history of the Catholic Church, and canonical structures have long been in place to address the problem. This Article argues that the recent crisis has resulted in part from a failure to respect and enforce the relevant provisions of canon law. If bishops had fulfilled their duty to abide by the rule of law, especially in the cases involving …

Forcing States To Be Free: The Emerging Constitutional Guarantee Of Radical Democracy, James A. Gardner

Journal Articles

No abstract provided.

Citizenship And Severity: Recent Immigration Reforms And The New Penology, Teresa A. Miller

Journal Articles

Over the past twenty years, scholars of criminal law, criminology and criminal punishment have documented a transformation in the practices, objectives, and institutional arrangements underlying a range of criminal justice system functions that are at the heart of penal modernism. In contrast to the preceding eighty years of criminal justice practices that were progressively more modern in their belief in the rationality of the criminal offender and their concern for enhancing civilization through rehabilitative responses to criminality, these scholars note that since the mid-198''0s the relatively settled assumptions about the framework that shaped criminal justice and penal practices for nearly …

Elucidating The Elephant: Interdisciplinary Law School Classes, Kim Diana Connolly

Journal Articles

No abstract provided.

Cultural Change And "Catholic Lawyers", Stephen F. Smith

Journal Articles

If there is anything that America definitely does not need, it would seem, it is more lawyers. Over the last thirty years or so, the number of lawyers practicing in the United States has almost tripled to current levels of roughly 900,000 practicing attorneys. To this number, our nation's law schools add another 35,000 attorneys annually. In spite of this, the purpose of this special inaugural law review issue is to commemorate the founding of a new school, the Ave Maria School of Law. It is an honor for me to be able to share in the joy and pride …

Biodiversity And Mom, John C. Nagle

Journal Articles

In December 1973, Congress enacted the Endangered Species Act (ESA). The law was the latest, and greatest, federal effort to prevent wildlife from becoming extinct. The members of Congress who voted for the law always mentioned bald eagles, grizzly bears, whooping cranes, alligators, and whales—the animals, in short, that today are most likely to be memorialized as Beanie Babies. They were also aware of the species that had already disappeared from the earth, such as the passenger pigeon and the great auk. Such images yielded an overwhelming vote in favor of the law. President Nixon signed it on December 28, …

A Crisis Of Caring: A Catholic Critique Of American Welfare Reform, Vincent D. Rougeau

Journal Articles

The current deterioration of the American economy is bringing new attention to the problem of poverty in the United States. After falling over the last few years, the number of Americans living in poverty has begun to rise once again. Notwithstanding the achievements of recent "welfare reforms," the American poor continue to be numerous by any measure.

Unfortunately, decades of affluence have exacerbated American tendencies to view liberal concepts such as freedom, autonomy, tolerance, and choice in ways that accentuate personal autonomy over community integration. These liberal values have been increasingly unhinged from strong countervailing principles like duty and responsibility, …

Subsidiarity As A Structural Principle Of International Human Rights Law, Paolo G. Carozza

Journal Articles

This article argues that the principle of subsidiarity should be recognized as a structural principle of international human rights law primarily because of the way that it mediates between the universalizing aspirations of human rights and the fact of the diversity of human communities in the world. The idea of subsidiarity is deeply consonant with the substantive vision of human dignity and the universal common good that is expressed through human rights norms. Yet, at the same time it promotes respect for pluralism by emphasizing the freedom of more local communities to realize their own ends for themselves.

Looking at …

From Conquest To Constitutions: Retrieving A Latin American Tradition Of The Idea Of Human Rights, Paolo G. Carozza

Journal Articles

This article explores the historical roots of the Latin American region's strong commitment to the idea of universal human rights, focusing on four key intellectual moments: the ethical response to the Spanish conquest; the rights ideology of the continent's liberal republican revolutions; the articulation of social and economic rights in the Mexican Constitution of 1917; and the Latin American contributions to the genesis of the Universal Declaration of Human Rights. Constructing a narrative from these examples, the article argues for the recognition of a distinct Latin American tradition within the global discourse of human rights.

The Public-Use Question As A Takings Problem, Nicole Stelle Garnett

Journal Articles

Government officials regularly use the power of eminent domain to benefit private entities, and just as regularly justify their actions with post hoc assertions about the need to promote economic development. In Hawaii Housing Authority v. Midkiff, the Supreme Court reaffirmed that the Fifth Amendment demands broad deference to a government's decision to exercise the power of eminent domain. Midkiff makes clear that public use challenges are subject to rational basis review; so long as a taking can be justified by some conceivable public purpose, it will be upheld. Yet in recent years, a number of courts have put the …

Law And What I Truly Should Decide, John M. Finnis

Journal Articles

Suppose we tried to think about law without trying first to describe it or to work out what the concept of it is. Suppose we asked instead whether, and if so why, and when, we-or more precisely each one of us-should favor introducing, having, endorsing, maintaining, complying with and enforcing it. We would be trying to think about law, about something not limited to our own time and town, but as something that people of any time and place of which we are aware would, as we can understand, have the same or similar need for and reasons to comply …

An American Tale, Geoffrey J. Bennett

Journal Articles

How much influence should the legal profession in England and Wales have over law degree courses? Geoffrey Bennett says to consider the U.S. experience before ditching the idea.

What Do Clients Want? What Do Lawyers Do?, Lynn Mather

Journal Articles

No abstract provided.

Triptych: Three Meditations On How Law Rules After Globalization, David A. Westbrook

Journal Articles

No abstract provided.

The American Influence On International Arbitration, Roger P. Alford

Journal Articles

It is indisputable that the international arbitration world is an identifiable epistemic community that transcends national borders, and whose members are shaped by their own experience. Increasingly, that experience reflects an American influence, be it heritage, training, affiliation, or client base. In these remarks, Professor Alford addresses three issues related to the Americanization of international arbitration. The first is whether international arbitration has, in fact, only recently become Americanized. He posits instead that there is always an ebb and flow to the level of the United States' involvement in international arbitration. During the drafting and signing of the 1958 New …

A Cultural Tour Of The Legal Landscape: Reflections On Cardinal George's Law And Culture, Charles E. Rice

Journal Articles

When a ruling of the supreme court meets with Congressional disfavor there are several remedies available to Congress. If the decision is not on a constitutional level, a later statutory enactment will suffice to reverse or modify the ruling. If, however, the Court's decision is an interpretation of a constitutional mandate, such as the requirement of the fourteenth amendment that legislative districts be apportioned according to population, then a statute could not reverse the decision because the statute itself would be subject to that constitutional mandate as defined by the Court.

The obvious method of reversing a Supreme Court interpretation …