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Journal Articles

2009

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Institution
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Articles 91 - 115 of 115

Full-Text Articles in Law

Response To Nicholas Boyle, O. Carter Snead Jan 2009

Response To Nicholas Boyle, O. Carter Snead

Journal Articles

Response to Nicholas Boyle’s talk “God, Sex, and America: From Decline of the Common Morality to the Emergence of a Global Ethical Life” at The Catholic University of America Center for Law, Philosophy and Culture’s Symposium “A Common Morality for the Global Age: In Gratitude for What We Are Given.”


Religious Liberties: The International Religious Freedom Act, Richard W. Garnett, Thomas F. Farr, T. Jeremy Gunn, William L. Saunders Jan 2009

Religious Liberties: The International Religious Freedom Act, Richard W. Garnett, Thomas F. Farr, T. Jeremy Gunn, William L. Saunders

Journal Articles

MR. SAUNDERS: Welcome to this panel, put on by the Religious Liberties Practice Group. Any of you who would like to join that Practice Group, you are cordially invited to do so. Welcome to the Federalist Society Annual Convention. My name is Bill Saunders. I am a Senior Fellow at the Family Research Council, and I am the Chairman of the Religious Liberties Practice Group at the Federalist Society.

Our aim today is: to talk about religious freedom, to talk about whether it should be an aspect of U.S. foreign policy, how best to make it so if you believe …


Land Trusts That Conserve Communities, James J. Kelly Jan 2009

Land Trusts That Conserve Communities, James J. Kelly

Journal Articles

Much has been written about land trusts that conserve wilderness, agriculture or other environmentally beneficial uses that would be threatened by unfettered development. In the context of inner-cities, Community Land Trusts (CLTs) conserve neighborhoods. Like their environmental and agricultural counterparts, CLTs employ use restrictions to prioritize communally beneficial development. Conserving communities, however, requires other legal tools as well. CLTs create and sustain permanently affordable homes to break the market’s bias toward socioeconomic homogeneity. CLTs also make room, literally, for green space, sites of shared culture and other productive activities that the market tends to commercialize or marginalize. By sustaining a …


Does Free Exercise Of Religion Deserve Constitutional Mention?, John M. Finnis Jan 2009

Does Free Exercise Of Religion Deserve Constitutional Mention?, John M. Finnis

Journal Articles

The article discusses the inclusion of the free exercise of religion among a society's constitutional guarantees in the U.S. It cites Christopher Eisgruber and Lawrence Sager, authors of the book "Religious Freedom and the Constitution," who hold that religion does not deserve constitutional mention on account of any special value. It disputes this view and states that religion does deserve constitutional mention and that the constitution should protect a citizen's right to practice his or her religion.


H.L.A. Hart: A Twentieth-Century Oxford Political Philosopher, John M. Finnis Jan 2009

H.L.A. Hart: A Twentieth-Century Oxford Political Philosopher, John M. Finnis

Journal Articles

This essay offers first a sketch (by a student and colleague) of H.L.A. Hart's life; second an account of the political philosophy which he explicitly articulated in The Concept of Law (1961), and of its relation to the main currents of Oxford political philosophy in the 1950s; and thirdly an exposition and critical assessment of the normative political theory deployed, to widespread acclaim, in his Law, Liberty & Morality (1963).


The Securities Laws And The Mechanics Of Legal Change, Barry Cushman Jan 2009

The Securities Laws And The Mechanics Of Legal Change, Barry Cushman

Journal Articles

This essay, prepared for the Virginia Law Review symposium marking the 75th anniversary of the Securities Exchange Commission, explores the mechanisms through which the Roosevelt Administration secured the Supreme Court's approval of various features of the New Deal's securities law program.


The Nobel Effect, Roger P. Alford Jan 2009

The Nobel Effect, Roger P. Alford

Journal Articles

For the first time in scholarly literature, this article traces the history of modern international law from the perspective of the constructivist theory of international relations. Constructivism is one of the leadings schools of thought in international relations today. This theory posits that state preferences emerge from social construction and that state interests are evolving rather than fixed. Constructivism further argues that international norms have a life cycle composed of three stages: norm emergence, norm acceptance (or "norm cascades"), and norm internalization. As such, constructivism treats international law as a dynamic process in which "norm entrepreneurs" interact with state actors …


An Appropriate Focus On War, Mary Ellen O'Connell Jan 2009

An Appropriate Focus On War, Mary Ellen O'Connell

Journal Articles

This paper is part of book discussion featuring the 2009 Winner of the ASIL Certificate of Merit for Creative Scholarship--The Historical Foundations of World Order: The Tower and the Arena, by Douglas M. Johnston.

This panel was convened at 1:00 pm, Thursday, March 26, 2009 by its moderator, Devashish Krishan of Baker Botts LLP, who introduced the panelists:

  • David Bederman, Emory University School of Law
  • Tai-Heng Cheng, New York Law School
  • John Crook, George Washington University Law School
  • Mary Ellen O'Connell, University of Notre Dame Law School

The full issue of the proceedings is available via Oxford University Press


Proportional Mens Rea, Stephen F. Smith Jan 2009

Proportional Mens Rea, Stephen F. Smith

Journal Articles

This Essay makes the case for "proportional mens rea," a proportionality-based approach to mens rea selection. Proportional mens rea would provide proportionality safeguards that are otherwise entirely lacking in substantive criminal law and,as a practical matter, unavailable in constitutional law. Creating implied mens rea requirements, where necessary to ensure proportional punishment, is not a judicial usurpation of a legislative function. Rather, it is to take seriously the role that courts play, under both constitutional and substantive criminal law, to ensure that punishment "fits" the crime. Moreover, proportional mens rea would represent a needed counterweight to prosecutorial behavior whereas current doctrine …


Profiling Minority Law Librarians: An Update, Dwight B. King, Rhea Ballard-Thrower, Grace M. Mills Jan 2009

Profiling Minority Law Librarians: An Update, Dwight B. King, Rhea Ballard-Thrower, Grace M. Mills

Journal Articles

This is a 2007 update of a survey of minority law librarians first conducted in 1992. It offers a recent profile of our minority colleagues, enabling one to see how things have changed - or remained the same - over the course of fifteen years.


A Hands-Off Approach To Religious Doctrine: What Are We Talking About?, Richard W. Garnett Jan 2009

A Hands-Off Approach To Religious Doctrine: What Are We Talking About?, Richard W. Garnett

Journal Articles

At the 2008 Annual Meeting of the American Association of Law Schools, the program organized by the Section on Law and Religion presented for consideration the claim that “the United States Supreme Court has shown an increasing unwillingness to engage in deciding matters that relate to the interpretation of religious practice and belief.” The Court, it was proposed, is — more and more — taking a “hands-off approach to religious doctrine.”

This proposal was, and remains, timely and important, as is illustrated by — to mention just a few, diverse examples — the ongoing property-ownership dispute between several “breakaway” Episcopal …


Testing Modern Trademark Law's Theory Of Harm, Mark Mckenna Jan 2009

Testing Modern Trademark Law's Theory Of Harm, Mark Mckenna

Journal Articles

Modern scholarship takes a decidedly negative view of trademark law. Commentators rail against doctrinal innovations like dilution and initial interest confusion. They clamor for clearer and broader defenses. And they plead for greater First Amendment scrutiny of various applications of trademark law. But beneath all of this criticism lies overwhelming agreement that consumer confusion is harmful. This easy acceptance of the harmfulness of confusion is a problem because it operates at too high a level of generality, ignoring important differences between types of relationships about which consumers might be confused. Failure to differentiate between these different relationships has enabled trademark …


The Limitations Of Majoritarian Land Assembly, Daniel B. Kelly Jan 2009

The Limitations Of Majoritarian Land Assembly, Daniel B. Kelly

Journal Articles

In their article, Land Assembly Districts, Professors Michael Heller and Rick Hills address the collective action problem arising from excessively fragmented land. They propose an innovative solution: Land Assembly Districts (or LADs). In this Article, I raise several concerns regarding LADs in particular and majoritarian land assembly in general. LADs rely on majority voting by a neighborhood's existing owners. Yet majority voting, coupled with the possibility of heterogeneity, means that LADs may both approve socially undesirable assemblies and disapprove socially desirable ones. LADs also permit owners to bargain over a project's surplus. But such bargaining creates additional costs for developers, …


Pretextual Takings: Of Private Developers, Local Governments, And Impermissible Favoritism, Daniel B. Kelly Jan 2009

Pretextual Takings: Of Private Developers, Local Governments, And Impermissible Favoritism, Daniel B. Kelly

Journal Articles

Since Kelo v. City of New London, the preferred litigation strategy for challenging a condemnation that benefits a private party is to allege that the taking is pretextual. This Article contends that, although pretextual takings are socially undesirable, the current judicial test for identifying such takings is problematic. Yet an alternative, intent-based test might be impracticable, as well as underinclusive: condemnors often have mixed motives, particularly when confronted with a firm's credible threat to relocate. Instead, the Article develops a framework that emphasizes informational differences between local governments and private developers. When the government lacks information regarding the optimal site …


The One-Size-Fits-All Family, Margaret F. Brinig, Steven L. Nock Jan 2009

The One-Size-Fits-All Family, Margaret F. Brinig, Steven L. Nock

Journal Articles

Family policy and the law based on it assume universals. That is, if marriage improves the welfare of the majority of couples and their children, it is worth pushing as a policy initiative. Further, laws will be written (or kept on the books) that privilege marriage over other family forms. Similarly, research that tells us that divorce harms children except following the relatively small number of highly conflicted marriages, spawns efforts to preserve troubled marriages or even to roll back liberal or relatively inexpensive divorce laws. With yet another example, since adopted children mostly do better than children left either …


A Most Interesting Part Of Baseball's Monetary Structure - Salary Arbitration In Its Thirty-Fifth Year, Ed Edmonds Jan 2009

A Most Interesting Part Of Baseball's Monetary Structure - Salary Arbitration In Its Thirty-Fifth Year, Ed Edmonds

Journal Articles

This article explores the history and evolution of baseball's arbitration system, focusing on players with arbitration eligibility in 2009. The article also explores teams' use of the "file-and-go" strategy.


The Limits Of Administrative Guidance In The Interpretation Of Tax Treaties, Michael Kirsch Jan 2009

The Limits Of Administrative Guidance In The Interpretation Of Tax Treaties, Michael Kirsch

Journal Articles

This Article addresses the increasingly important role of administrative guidance in interpreting the United States' international treaty obligations. The relationship between administrative guidance and treaties raises important issues at the intersection of international law, constitutional law, and administrative law. These issues are explored in the context of the United States' extensive tax treaty network. Tax treaties play an important role in a global economy, attempting to reconcile the complex and ever-changing internal tax laws of different countries. The Treasury Department is considering the increased use of administrative guidance to interpret the meaning and application of tax treaties, particularly in response …


"But For The Grace Of God There Go I": Justice Thomas And The Little Guy, Nicole Stelle Garnett Jan 2009

"But For The Grace Of God There Go I": Justice Thomas And The Little Guy, Nicole Stelle Garnett

Journal Articles

This Essay, prepared for a NYU Journal of Law and Liberty symposium on “The Unknown Justice Thomas,” challenges the oft-repeated criticism that Justice Clarence Thomas’s opinions reflect a lack of empathy for the less fortunate. The Essay argues that, on the contrary, Justice Thomas’s opinions are replete with expressions of concern for the “little guy,” which are frequently overlooked or misinterpreted. The Essay explores three themes reflecting this concern in Thomas’s opinions.


Homes Affordable For Good: Covenants And Ground Leases As Long-Term Resale-Restriction Devices, James J. Kelly Jan 2009

Homes Affordable For Good: Covenants And Ground Leases As Long-Term Resale-Restriction Devices, James J. Kelly

Journal Articles

Covenants and ground leases have been, and continue to be, used to create shared spaces that are fundamentally, and often invidiously, exclusive. Famously made a dead letter in the case of Shelley v. Kraemer, covenants banning resale to nonwhite households put the force of law behind the segregated birth of America’s suburbs. Today, gated residential communities and shopping malls assure a degree of class exclusivity through covenants and commercial ground leases, respectively. These same legal mechanisms, however, are now deployed to assure long-term inclusion as well.

Developers of affordable housing are creating homes that are not only beneficial to the …


The Idea Of Pollution, John C. Nagle Jan 2009

The Idea Of Pollution, John C. Nagle

Journal Articles

Pollution is the primary target of environmental law. During the past forty years, hundreds of federal and state statutes, administrative regulations, and international treaties have established multiple approaches to addressing pollution of the air, water, and land. Yet the law still struggles to identify precisely what constitutes pollution, how much of it is tolerable, and what we should do about it.

But environmental pollution is hardly the only type of pollution. Historically, the idea of pollution referred to a host of effects upon human environments. This remains evident in contemporary anthropological literature, which studies the pollution beliefs of cultures throughout …


Trademark Use And The Problem Of Source, Mark P. Mckenna Jan 2009

Trademark Use And The Problem Of Source, Mark P. Mckenna

Journal Articles

This Article mediates a scholarly debate regarding the existence and desirability of a "trademark use" doctrine. It argues that trademark use is a predicate of liability under the Lanham Act, but those who advocate treating trademark use as a threshold question put much more weight on that concept than it can bear. Courts cannot consistently apply trademark use as a distinct element of the plaintiff's prima facie case because trademark use can be determined only from the perspective of consumers. Specifically, courts can determine whether a defendant has made trademark use of a plaintiff's mark only by asking whether consumers …


Standing, Spending, And Separation: How The No-Establishment Rule Does (And Does Not) Protect Conscience, Richard W. Garnett Jan 2009

Standing, Spending, And Separation: How The No-Establishment Rule Does (And Does Not) Protect Conscience, Richard W. Garnett

Journal Articles

The First Amendment’s “Establishment Clause” is widely thought to protect “conscience.” Does it? If so, how? It is proposed in this paper that the no-establishment rule does indeed promote and protect religious liberty, and does safeguard conscience, but not (or, at least, not only) in the way most people think it does, namely, by sparing those who object from the asserted injury to their conscience caused by public funding of religious activity.

The Supreme Court’s decision in Hein v. Freedom from Religion Foundation - a case in which the Justices limited taxpayer standing to bring Establishment Clause claims - reminds …


Does "Proceeds" Really Mean "Net Profits"? The Supreme Court's Efforts To Diminish The Utility Of The Federal Money Laundering Statute, Jimmy Gurule Jan 2009

Does "Proceeds" Really Mean "Net Profits"? The Supreme Court's Efforts To Diminish The Utility Of The Federal Money Laundering Statute, Jimmy Gurule

Journal Articles

The Supreme Court’s decision in United States v. Santos is severely hampers the fight against drug traffickers, terrorists, mobsters and white collar criminals. It restricts the scope of the money laundering statute, defining the term “proceeds” in it as net profits, not gross receipts from unlawful activity. This imposes an unreasonable and unwarranted burden on prosecutors to prove net criminal profits, money acquired beyond the defendant’s overhead expenses from unlawful activities. The court’s holding also restricts other provisions of the money laundering statute, such as the concealment theory of money laundering, and it creates confusion over whether the Court’s restrictive …


The Federal Common Law Of Nations, Anthony J. Bellia, Bradford R. Clark Jan 2009

The Federal Common Law Of Nations, Anthony J. Bellia, Bradford R. Clark

Journal Articles

Courts and scholars have vigorously debated the proper role of customary international law in American courts: To what extent should it be considered federal common law, state law, or general law? The debate has reached something of an impasse, in part because various positions rely on, but also are in tension with, historical practice and constitutional structure. This Article describes the role that the law of nations actually has played throughout American history. In keeping with the original constitutional design, federal courts for much of that history enforced certain rules respecting other nations' perfect rights (or close analogues) under the …


Breaching A Leaking Dam?: Corporate Money And Elections, Lloyd Hitoshi Mayer Jan 2009

Breaching A Leaking Dam?: Corporate Money And Elections, Lloyd Hitoshi Mayer

Journal Articles

With a brief order issued at the end of its last term, the Supreme Court dramatically raised the stakes in Citizens United v. FEC. What many had predicted would be a case decided on narrow, technical grounds has now become a possible vehicle for overturning two key campaign finance precedents. By ordering re-argument and supplemental briefing on the issue of whether it should overrule either or both Austin v. Michigan Chamber of Commerce and the part of McConnell v. FEC which addresses the facial validity of Section 203 of the Bipartisan Campaign Reform Act of 2002, the Court signaled that …