Law Commons^™

L'Oz, Emily A. Hartigan

Faculty Articles

Taking Oz Seriously is a piece that contemplates the interaction between the Law and the girl/woman in The Wizard of Oz. The interaction is set in motion by the legal document that Miss Gulch waves at Uncle Henry and Auntie Em allowing Miss Gulch to take Toto away from Dorothy. Additionally, this story is also about the feminine in our culture and in the academy. In the end, Dorothy finds her own way home. The implication is that not only is Dorothy transformed, but she is also transformative. Although it seems that the adults are just playing her along at …

Just Talking With The Furniture, Emily A. Hartigan

Faculty Articles

The current social and political situation of the United States is post-modern, post-colonial, post-critical, and post-secular. It is located in a two-party system in which the substantive values of the population are radically fragmented. As such, American social and political culture needs new prospects for conversation, both about and constituting justice, which can cross the vast differences between its members. It is time to enter a discourse on substantive justice in a way that uses the imagined unity of modernist thought as a way station for something both old and new.

Pilgrim To Nowhere - The Mysterious Journey Of Robert Rodes, Emily A. Hartigan

Faculty Articles

Notre Dame Law Professor Robert Rodes advocates for Pilgrim Law, which is based on the preferential option for the poor. Pilgrim Law is the jurisprudential manifestation of liberation theology. Rodes used Milovan Djilas, author of anti-socialist works such as Conversations with Stalin and The New Class, for insight. Drawing from Djilas, Rodes concludes that class will always count, but count in a nuanced way. This revelation was discovered within Djilas’ self-aware and trenchant analysis amid the reality of the theoretically “classless” societies of Soviet (and Yugoslav) socialism. This empirical insight is what Rodes finds crucial to his Pilgrim Law advocacy. …

Unlaw, Emily A. Hartigan

Faculty Articles

The United States is in a time of “unlaw” that is both a point in circular time, the time of eternal return, and a point never before reached. This “unlaw” infuses both the practical, applied, and experiential world of politics. Additionally, this era of “unlaw” also incorporates the intellectual world of philosophy and theology as well as political theory.

In this state of non-law, the United States incarcerates a higher percentage of people than any other developed nation. The United States claims to value money so much that it is speech, and thus free under the First Amendment. This results …

Engaged Surrender In The Void: Post-Secularist "Human" Rights Discourse And Muslim Feminists [Sic], Emily A. Hartigan

Faculty Articles

Human rights discourse is inherently multicultural, and multicultural discourse is messy. The reality of discourse on the post-secular manifests in various books and websites. This manifestation has led to religion resurfacing in the public realm. At some level, the academy that poses as secular is a small and politically inconsequential voice in the national and international arena. Among the restrictions that secular discourse would attempt to dictate are those suggested in projects to re-enchant a world that has become spiritually, epistemically, politically, and perhaps humanly desiccated by the relegation of talk of the sacred to the private realm.

The purely …

Law Fragments, Emily A. Hartigan

Faculty Articles

The contrast between the portrayal of Christianity and the treatment of earth-based religions by dominant legal discourse is illustrated throughout history. The true images of “saturated auratic [or] sacred elements-become-images” accompanies the division of history into fragments. The fragmented image is particularly important when it arises from a suppressed history or marginalized persons—these fragments are necessary to resist totalitarianism.

One way to see the call for “explosive fragments” is to acknowledge that the culture in the United States is already in ruins. Part of that dissolution is the loss of hegemony by white-male-European culture which can be seen in the …

Globalization In A Fallen World: Redeeming Dust, Emily A. Hartigan

Faculty Articles

The paradigm used in discussions about academic globalization is the “rational” discourse of the late twentieth century. This paradigm is manifested in university and political-cultural commentary in the United States and Great Britain. The term “globalization” immediately evokes a paradox. The paradox of the globe is it risks confusing itself with the universe. One key axis of of the paradox is between “good” globalization and “bad” globalization, another between the “is” and the “ought” of globalization.

A world-wide culture, democracy, or economy is inherently fallen. Attending to the forces that would pull us back together is one key to overcome …

The Word And The Law, By Milner S. Ball (Book Review), Emily A. Hartigan

Faculty Articles

Milner Ball’s The Word and the Law has become a widely quoted work, and has already taken its place in the continuing tale of law and religion. The text presents itself in typical Ball fashion: richly and eloquently written, densely noted with weighty references, alive with stories and the voices of those with whom Ball has conversed.

A striking innovation in this book is Ball’s creation of a space in his text for the stories of those who are both his peers and not his peers, giving over the “pulpit” to women, edgy Jews, and Native Americans, all of whom …

Out-Lawing God The Daughter, Emily A. Hartigan

Faculty Articles

The traditionally forbidding visage of law mimics the constructed face of the “God of our Fathers.” The punitive ‘Father God’ and the harsh letter of the law are connected in both their errors and their promises for transformation. Both the ‘Father’ and ‘His Law’ primarily impose their wills through “authority” and “force.”

Jewish feminist theologian Judith Plaskow questions whether the law is a female form. Plaskow contrasts the law’s constrictions and abstraction with traditional femeie characteristics of openness and fluidity. Plaskow hopes to redeem her tradition through a God of relationship and love, affirming both law and a new feminine …

Disturbing The Peace, Emily A. Hartigan

Faculty Articles

When concerns of race, gender, and orientation intersect with the Catholic faith and church, the interaction can prove painful and difficult. Experiences of feeling judged or condemned ricochet between camps, the members of each desperate to defend that which they feel is inherent to them, to their identities and self-understanding. But despite the damage that Catholicism can and has inflicted by its striction and history, it retains a mode of outreach to the disaffected—La Virgen, dark and female and still only just coming to be understood. She is controversial and always subject to attempts at political manipulation, but she is …

Law’S Alienation: Furies And Nomoi And Bears (And Nuns), Emily A. Hartigan

Faculty Articles

The inclusion of spirit in the law is necessary because the exclusion of the spirit from the law separates the law from its dynamic source of animation. The inclusion of the spirit or spirituality with the law will better allow the United States to craft laws and policies designed to address undocumented workers and illegal aliens.

Even Socrates wrote about the separation of spirit and the law when he wrote about the Nomoi and the Furies; however, he also discussed his Daemon, an inner voice enters into dialogue with the Nomoi, the law. This inner voice that was essential for …

Practicing And Professing Spirit In Law, Emily A. Hartigan

Faculty Articles

God and femininity share similar positions of marginalization within the law and the legal academy: the classic division between home and business and the “feminine world of morality and love and the realm of “tough” survival skills and competition.” This marginalization, coupled with facets of American traditions, preclude progress from being achieved with respect to either, because neither is significantly part of the American public discourse, and the introduction of either is frowned upon within the academy. This marginalization is evinced by the work of people such as Michael Novak, who painted God as a small-time entrepreneur in his endeavor …

Solidarity And Suffering: Toward A Politics Of Relationality, By Douglas Sturm (Book Review), Emily A. Hartigan

Faculty Articles

In his latest book, Douglas Sturm reveals himself as almost predictable. In Solidarity and Suffering: Toward a Politics of Relationality, here he is again in the guise of the knowledgeable scholar forever moving to include more: more spirit, more people, more difference, more tension, more justice. His movement of inclusion draws the reader always outside the framework of the conventions of discourse he last inhabited. Yet something about that movement itself has an integral, almost definable theme, a theme of relation and connection permeating the incisive distinctions his fine mind navigates for the reader.

Once again, in Solidarity and Suffering, …

Multiple Unities In The Law, Emily A. Hartigan

Faculty Articles

In a world newly in touch with its diversity, ethics must struggle with the impact difference has on coherence. There is a crucial dilemma more profound than how to avoid violating the canons of ethics, or how to dodge disciplinary proceedings. For the lawyer in a world of plural ethics—the dilemma posed by the primary tension in ethics today between reason and spirit.

There are multiple unities of meaning in which a lawyer works, a sort of multijurisdictionalism. These multiple unities, these many worlds, are emblematic of a time in which people are recognizing that multiculturalism is not a trendy …

Ordinary Sacraments, Emily A. Hartigan

Faculty Articles

Richard Parker is a true force in constitutional thought, and his Populist commitment finds fertile landscape. However, there is something missing from his account of populism—the role of reflection and the fear of God in human affairs. Parker never deals with the fact that “the people” believe in God. Despite the intellectualist drive to separate God from politics, most Americans do not maintain such a wall. Whether under a stultifying separationist doctrine or in a more open pluralism, the people are God-fearing in an increasingly fractured and fascinating way—they are recognizably, fundamentally religious. Parker advocates being in touch with what …

Surprised By Law, Emily A. Hartigan

Faculty Articles

This year’s Association of American Law Schools convention provided a genuinely engaging panel discussion between Michael Sandel and Judge Stephen Reinhardt. Michael Sandel, Harvard philosopher of community and the “encumbered self,” delivered his defense of an ethics of appreciation which goes beyond mere toleration, arguing for honor for persons rather than mere dignity. Reinhardt countered by characterizing Sandel’s stuff as the sort of academic theorizing which has nothing much to do with the world, and raised with almost unconscious elegance the main issue, and a deeply troubling concrete dilemma.

Reinhardt noted that Sandel’s portrait of the person did not work …

Derridoz Law Written In Our Heart/Land: “The Powers Retained By The People”, Emily A. Hartigan

Faculty Articles

Section 26 of the Nebraska Constitution, much like everything affirmative that humans do, is immediately flawed. The flaw sits literally right below this heartfelt declaration of the people’s sovereignty, in an annotation provided for section 26 in the Revised Statutes of Nebraska. This annotation cites State v. Moores, but recites also that the case was overruled, which is wrong for a number of reasons. First, not only does this conflict with other annotations to the same Bill of Rights citing the very same case, but it also ignores the inadequacy of the supposed “overruling” and the existence of an explicit …

Rose And Apple—Original Gifts?, Emily A. Hartigan

Faculty Articles

Carol Rose begins and ends her distinctive, wry commentary on gift and exchange with the idea that the only thing we really understand is larceny. Her presentation is delightfully grounded and lucid, with touches of humor to remind readers of her realistic context. The argument proceeds through ostensible game-theoretic musings, with hints of puzzles which she later turns into conundrums. The pace is even, clear, and inhabited by examples from property law which invite the reader along.

In Giving, Trading, Thieving and Trusting: How and Why Gifts Become Exchanges, and (More Importantly) Vice Versa, the title gives the agenda of …

From Righteousness To Beauty: Reflections On Poethics And Justice As Translation, Emily A. Hartigan

Faculty Articles

Both Richard Weisberg and James Boyd White are eminent figures in the academic field of law and literature. As lines between philosophy and literature blur, the stance of “judgment” becomes more like a reflective aesthetic evaluation than a critique through formal logic. Law is, as Weisberg and White agree, more art than science. Yet, for all their contributions to the study of law, including their ostensibly shared realm of mediation, the two create a combative, hierarchic tone of discourse by the near-total exclusion of women from their texts.

Law as conversation is not primarily war through or with words. Rather, …

The Power Of Language Beyond Words: Law As Invitation, Emily A. Hartigan

Faculty Articles

Law is an invitation to fuller life, more than a mere instrument of force, coercion, and death, which is imprinted within each person and which animates the ideas of our constitutions and statutes. Our laws should seek to reflect and be unified with God’s Law, and the process towards that end requires disclosure and trust, which, in turn, requires clarity of one’s whole person, which is achieved through prayerfulness.

Much of academia and society only recognizes the evil present in our law and society; however, where there is evil or negativity, goodness and that which is positive must have preceded …

“Make The Ring In Your Mind” (Book Review), Emily A. Hartigan

Faculty Articles

aking All the Difference, by Martha Minow, promised to render the multiple differences of race, gender, disability, and orientation, part of a whole discourse on difference. In this, the book is a success. Yet, the contradiction which Minow’s ideas play with her genre is bothersome. It is not that her way of writing is not valuable. Minow is remarkably lucid. But what she names at the outset—a relational approach, with a sensitivity to boundaries—she does not deliver. That conundrum, and why it seems to be—but is not—the unavoidable dilemma of the gifted female scholar in law today, is worth investigating.

Law And Mystery: Calling The Letter To Life Through The Spirit Of The Law Of State Constitutions, Emily A. Hartigan

Faculty Articles

If law is anything today, it is dispirited. It lacks life, vitality, enchantment, and vision. Neither law nor its practitioners sing—or even hum. However, there is something more, already present in America’s state constitutions if practitioners dare turn to hear it. It is the voice of the spirit of the laws of the land. It sings of a vision.

There is a strain of constitutional law, anchored by actual judicial language about the spirit of law, which participates in the discourse identified in two key law review articles—Suzanna Sherry’s “The Founders’ Unwritten Constitution,” and Thomas Grey’s “Origins of the Unwritten …