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Full-Text Articles in Law
The Individual Mandate, Sovereignty, And The Ends Of Good Government: A Reply To Professor Randy Barnett, Patrick Mckinley Brennan
The Individual Mandate, Sovereignty, And The Ends Of Good Government: A Reply To Professor Randy Barnett, Patrick Mckinley Brennan
Working Paper Series
Randy Barnett has recently argued that the individual mandate is unconstitutional because it is an improper regulation under the Necessary and Proper Clause (in conjunction with the Commerce Clause) because it improperly "commandeers" the people and thereby violates their sovereignty. In this paper, I counter that the argument from sovereignty is unavailing because it is, among other defects, hopelessly ambiguous. The variety of historically attested meanings of "sovereignty" renders the concept useless for purposes of answering questions of comparative authority, including the authority of the Congress to mandate that individuals purchase health insurance from a private market. There is no …
The Place Of 'Higher Law' In The Quotidian Practice Of Law: Herein Of Practical Reason, Natural Law, Natural Rights, And Sex Toys, Patrick Mckinley Brennan
The Place Of 'Higher Law' In The Quotidian Practice Of Law: Herein Of Practical Reason, Natural Law, Natural Rights, And Sex Toys, Patrick Mckinley Brennan
Working Paper Series
The question of the place of higher law in the ordinary practice of law is even now dogged by the brooding omnipresence caricature. This Article seeks to introduce and apply a philosophically defensible account of natural law, the one defended by Thomas Aquinas, to various problematics of contemporary law and jurisprudence. The Article argues that such higher law is not so high as to be relevant only to sexy constitutional questions, as is often supposed, but to everything we do in law. The Article argues that liberals and conservatives alike should acknowledge both the place of natural law in the …
Are Legislation And Rules A Problem In Law? Thoughts On The Work Of Joseph Vining, Patrick Mckinley Brennan
Are Legislation And Rules A Problem In Law? Thoughts On The Work Of Joseph Vining, Patrick Mckinley Brennan
Working Paper Series
Written for a conference at Villanova Law School held to celebrate and explore the work of Joseph Vining over forty years, this paper considers the adequacy of Vining’s phenomenology of law. Specifically, it inquires into the accuracy of Vining’s startling claims that “legislation is a problem in law, not central to law” and “rules are nowhere to be found” in law. The argument of the paper is that when -- but only when -- law is understood to be an ordinance of reason in the mind of him or them who have care of the community, for the common good, …
Delivering The Goods: Herein Of Mead, Delegations, And Authority, Patrick Mckinley Brennan
Delivering The Goods: Herein Of Mead, Delegations, And Authority, Patrick Mckinley Brennan
Working Paper Series
This paper argues, first, that the natural law position, according to which it is the function of human law and political authorities to instantiate certain individual goods and the common good of the political community, does not entail judges' having the power or authority to speak the natural law directly. It goes on to argue, second, that lawmaking power/authority must be delegated by the people or their representatives. It then argues, third, that success in making law depends not just on the exercise of delegated power/authority, but also on the exercise of care and deliberation or, in the article's terms, …
Factual Premises Of Statutory Interpretation In Agency Review Cases, Todd S. Aagaard
Factual Premises Of Statutory Interpretation In Agency Review Cases, Todd S. Aagaard
Working Paper Series
This article examines factual premises of statutory interpretation in agency review cases, and proposes an approach that would better integrate the treatment of such factual premises into the overall structure of administrative law. Courts frequently encounter questions of statutory interpretation that depend on underlying factual background, context, and implications. When they do so, courts generally assume that they retain the authority to decide the factual premises and thereby to answer questions of statutory interpretation that depend on factual premises. This is problematic from a functional standpoint, because courts often lack the information or expertise necessary to assess these underlying facts …
What's In A Name Or, Better Yet, What's It Worth?: Cities, Sports Teams And The Right Of Publicity, Mitchell J. Nathanson
What's In A Name Or, Better Yet, What's It Worth?: Cities, Sports Teams And The Right Of Publicity, Mitchell J. Nathanson
Working Paper Series
This article examines the harm that accompanies real and threatened in-market relocations of professional sports teams and proposes a federal statutory remedy that will protect the interest of city residents given the reality that city governments have demonstrated their inability to adequately protect their electorate through contract law alone. Although, as this article discusses, there have been myriad bills proposed by Congress in response to several high profile out-of-market sports franchise relocations (mostly those involving NFL teams and mostly during the 1990’s), in-market relocations have historically occurred much more frequently, inflicting similar harms to the spurned city residents. Moreover, as …
No Thanks, Uncle Sam, You Can Keep Your Tax Break, James Edward Maule
No Thanks, Uncle Sam, You Can Keep Your Tax Break, James Edward Maule
Working Paper Series
This article addresses the question of whether income tax deductions are mandatory, or may be waived by the taxpayer when doing so generates a tax or non-tax benefit. What little authority exists suggests that deductions are optional except in two specific instances related to the computation of net earnings from self-employment. The increasing number of taxpayers subject to the alternative minimum tax, the amount of which can be reduced in many instances by foregoing deductions, makes it very likely that the question will reach the courts in the near future. This article concludes that aside from the two specific instances …
Criminal Law - Hobbs Act - Application Of The Hobbs Act In Local Political Corruption Prosecutions By The Federal Government, David E. Robbins
Criminal Law - Hobbs Act - Application Of The Hobbs Act In Local Political Corruption Prosecutions By The Federal Government, David E. Robbins
Villanova Law Review
No abstract provided.
The Federal Anti-Riot Act And Political Crime: The Need For Criminal Law Theory, Marvin Zalman
The Federal Anti-Riot Act And Political Crime: The Need For Criminal Law Theory, Marvin Zalman
Villanova Law Review
No abstract provided.
Federal Statues And Government Regulation, Various Editors
Federal Statues And Government Regulation, Various Editors
Villanova Law Review
No abstract provided.
The Federal Medical Care Recovery Act: A Case Study In The Creation Of Federal Common Law, Joseph C. Long
The Federal Medical Care Recovery Act: A Case Study In The Creation Of Federal Common Law, Joseph C. Long
Villanova Law Review
No abstract provided.
Resale Price Maintenance, Refusals To Deal, And The Gasoline Retailer - A Search For Alternative Remedial Deterrents, Richard C. Mccarthy
Resale Price Maintenance, Refusals To Deal, And The Gasoline Retailer - A Search For Alternative Remedial Deterrents, Richard C. Mccarthy
Villanova Law Review
No abstract provided.
No-Fault Automobile Insurance In Pennsylvania - A Constitutional Analysis, Joel M. Martel
No-Fault Automobile Insurance In Pennsylvania - A Constitutional Analysis, Joel M. Martel
Villanova Law Review
No abstract provided.
Housing Market Operations And The Pennsylvania Rent Withholding Act - An Economic Analysis, Joseph R. Buckley, Gary N. Conley
Housing Market Operations And The Pennsylvania Rent Withholding Act - An Economic Analysis, Joseph R. Buckley, Gary N. Conley
Villanova Law Review
No abstract provided.
The Pennsylvania Project - A Practical Analysis Of The Pennsylvania Rent Withholding Act, David F. Girard-Dicarlo, James S. Green, Alan J. Hoffman, William F. Holsten
The Pennsylvania Project - A Practical Analysis Of The Pennsylvania Rent Withholding Act, David F. Girard-Dicarlo, James S. Green, Alan J. Hoffman, William F. Holsten
Villanova Law Review
No abstract provided.
Liability Of Credit Bureaus After The Fair Credit Reporting Act: The Need For Further Reform, Charles M. Ullman
Liability Of Credit Bureaus After The Fair Credit Reporting Act: The Need For Further Reform, Charles M. Ullman
Villanova Law Review
No abstract provided.
Federal Population Policy: A Decade Of Change, Carl S. Shultz
Federal Population Policy: A Decade Of Change, Carl S. Shultz
Villanova Law Review
No abstract provided.
The Constitutional Aspects Of A National Population Policy, Cyril C. Means
The Constitutional Aspects Of A National Population Policy, Cyril C. Means
Villanova Law Review
No abstract provided.
Preventive Detention: The Lesson Of Civil Disorders, William A. Dobrovir
Preventive Detention: The Lesson Of Civil Disorders, William A. Dobrovir
Villanova Law Review
No abstract provided.
Municipal Debt Limitations In Pennsylvania, Steven G. Brown, Robert A. Ebenstein
Municipal Debt Limitations In Pennsylvania, Steven G. Brown, Robert A. Ebenstein
Villanova Law Review
No abstract provided.
National Population Programs And Policy: Social And Legal Implications - A Symposium - Introduction, Donald A. Giannella
National Population Programs And Policy: Social And Legal Implications - A Symposium - Introduction, Donald A. Giannella
Villanova Law Review
No abstract provided.
Population Policies Of State Governments In The United States: Some Preliminary Observations, Edwin D. Driver
Population Policies Of State Governments In The United States: Some Preliminary Observations, Edwin D. Driver
Villanova Law Review
No abstract provided.
A Survey Of Federal Multidistrict Litigation - 28 U.S.C. 1407, F. J. Nyhan
A Survey Of Federal Multidistrict Litigation - 28 U.S.C. 1407, F. J. Nyhan
Villanova Law Review
No abstract provided.
Involuntary Civil Commitment And The Right To Treatment In Pennsylvania, John V. Bonneau
Involuntary Civil Commitment And The Right To Treatment In Pennsylvania, John V. Bonneau
Villanova Law Review
No abstract provided.
Title Vii In The Federal Courts - Private Or Public Law, Robert J. Affeldt
Title Vii In The Federal Courts - Private Or Public Law, Robert J. Affeldt
Villanova Law Review
No abstract provided.
The Drinking Driver: An Approach To Solving A Problem Of Underestimated Severity, David A. Scholl
The Drinking Driver: An Approach To Solving A Problem Of Underestimated Severity, David A. Scholl
Villanova Law Review
No abstract provided.
Some Doubts Concerning The Proposal To Elect The President By Direct Popular Vote, Albert J. Rosenthal
Some Doubts Concerning The Proposal To Elect The President By Direct Popular Vote, Albert J. Rosenthal
Villanova Law Review
No abstract provided.
Taxation Of The Treasures Of The Sea, John J. Kenny, Ronald R. Hrusoff
Taxation Of The Treasures Of The Sea, John J. Kenny, Ronald R. Hrusoff
Villanova Law Review
No abstract provided.
Electric Transmission Lines - To Bury, Not To Praise, Samuel Graff Miller
Electric Transmission Lines - To Bury, Not To Praise, Samuel Graff Miller
Villanova Law Review
No abstract provided.
The Pennsylvania Goods And Services Installment Sales Act, Robert B. White Jr.
The Pennsylvania Goods And Services Installment Sales Act, Robert B. White Jr.
Villanova Law Review
No abstract provided.