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Social Policy And Employment Aspects Of The Treaty Of Amsterdam, Patrick Venturini

Fordham International Law Journal

Commenting on employment and social policy gives me the opportunity to start by pointing out how positive the outcome of the Treaty of Amsterdam (or “Treaty”) was in those fields. Indeed, the following four main fields are concerned with substantial extensions or reinforcements of European Community (“EC” or “Community”) competencies and responsibilities following the Amsterdam Summit: employment, social policy, equality between men and women, and fundamental rights and non-discrimination. Last but not least, the strengthening of the co-decision procedure, which is now the principal legislative procedure and requires a joint decision of the Council and the European Parliament, does affect …

External Relations Powers Of The European Community, Jacques H.J. Bourgeois

Fordham International Law Journal

As a result both of the way in which the external relations powers of the European Community (“EC” or “Community”) have been organized by the Treaty establishing the European Community (“EC Treaty”) and of the interpretation by the Court of Justice of the European Communities (“ECJ”), an analysis of the evolution of the external relations powers requires distinguishing between powers relating to foreign trade in the strict sense of the terms, i.e., “common commercial policy” under Article 113 of the EC Treaty, and other external relations powers both express and implied. The subject of this contribution is the external relations …

Empowering And Protecting Patients: Lessons For Physician-Assisted Suicide From The African-American Experience, Leslie E. Wolf, Patricia A. King

Faculty Publications By Year

No abstract provided.

Whitehead's Metaphysics And The Law: A Dialogue, Jay Tidmarsh

Journal Articles

The purposes of this Article are to explore the relationship between Alfred North Whitehead's process philosophy and the nature of law, and to develop from that exploration a theory of "process jurisprudence." To some extent, this Article is a process of interpretation and imagination. Whitehead himself devoted little attention to the nature of law. Therefore, rather than attempting to declare definitively the implications of Whitehead's thought for the nature of law, this Article is structured in the form of a dialogue between "Whitehead" and a lawyer whom I have called "Chris." In Part II, as he discusses his system of …

Federal Criminal Conspiracy, Todd R. Russell, O. Carter Snead

Journal Articles

Under 18 U.S.C. § 371, it is a crime for "two or more persons [to] conspire . . . to commit any offense against the United States, or to defraud the United States, or any agency thereof in any manner or for any purpose."

This Article first outlines, in Section I, the basic elements of a conspiracy offense under § 371. Defenses available to challenge charges brought under the statute are discussed in Section III of the Article. Section IV presents the evidentiary and constitutional guidelines governing admissibility of co-conspirator hearsay testimony at trials involving conspiracy charges. Section V surveys …

The Jurisprudence Of John Howard Yoder, Thomas L. Shaffer

Journal Articles

John Howard Yoder, prophet and theologian, died in his office at Notre Dame on December 30, 1997, the day after his seventieth birthday. Peter Steinfels's obituary in the New York Times of January 7, 1998, described my friend and colleague Yoder as "a Mennonite theologian whose writings on Christianity and politics had a major impact on contemporary Christian thinking about the church and social ethics." Steinfels did not describe Yoder's thought as jurisprudence; neither, for that matter, did Yoder. But there was (and is), throughout Yoder's scholarship, an implicit theology of law, a jurisprudence. A jurisprudence that is particularly noticeable …

The Commerce Clause Meets The Delhi Sands Flower-Loving Fly, John Copeland Nagle

Journal Articles

Is the Endangered Species Act constitutional? The D.C. Circuit considered that question in National Association of Home Builders v. Babbitt in 1997. More specifically, the case considered whether the congressional power to regulate interstate commerce authorized the ESA's prohibition upon building a large regional hospital in the habitat of an endangered fly that lives only in a small area of southern California. The three judges on the D.C. Circuit approached the question from three different perspectives: the relationship between biodiversity as a whole and interstate commerce, the relationship between the fly and interstate commerce, and the relationship between the hospital …

On Teaching Legal Ethics With Stories About Clients, Thomas L. Shaffer

Journal Articles

The comparison I have in mind is between what goes on at Notre Dame and what goes on in one of Professor James Boyd White's law and literature classes at the University of Michigan. Both classes use provocation. White provokes his students with an array of assigned readings, all of them about people, not all of them about law, ranging from Homer and Plato to Fowler on the split infinitive and the autobiography of Dick Gregory. We provoke our students with a parade of accounts from our members, accounts of people they think they can help.

White's enterprise is, I …

The Compromise Of '38 And The Federal Courts Today, John H. Robinson

Journal Articles

In 1998 the legal community of the United States should stop and take stock of two epochal events in the history of the federal judicial system. One of those events, as readers of a procedure symposium do not need to be told, is the sixtieth anniversary of the introduction of the Federal Rules of Civil Procedure. I shall have more to say about that event presently, but I want first to devote a few paragraphs to a second event, one which proceduralists ignore at their peril. The event I have in mind is the initiation of a new era of …

Partial Entrenchment Of A Bill Of Rights: The Canadian Model Offers A Viable Solution To The United Kingdom's Bill Of Rights Debate, Vincent P. Pace

Connecticut Journal of International Law

For three decades the United Kingdom has debated whether or not to adopt a bill of fights.' The United Kingdom does not have a constitution that codifies fundamental rights and entrenches these rights from government encroachment. Instead, precedent, customs, conventions, and Acts of Parliament collectively safeguard basic rights.3 Parliament, by simple majority approval, maintains the power to modify or repeal rights guaranteed by any of these sources. The judiciary cannot protect fundamental fights from executive or legislative encroachment because judges in the United Kingdom do not possess the power of judicial 4 review.

This debate has generated considerable controversy because …

The Threat Or Use Of Nuclear Weapons: Discernable Legal Policies Of The Judges Of The International Court Of Justice, Kazuomi Ouchi

Connecticut Journal of International Law

By a letter dated 19 December 1994, the Secretary-General of the United Nations officially communicated to the Registrar of the International Court of Justice the decision taken by the General Assembly of the United Nations to submit the question of the legality of the threat or use of nuclear weapons to the Court for an advisory opinion. The General Assembly noting, inter alia, that Article 96, paragraph 1, of the United Nations Charter empowers the General Assembly to request the Court to give an advisory opinion on any legal question, decided to request the Court to urgently render its advisory …

Tribal Court Praxis: One Year In The Life Of Twenty Tribal Courts, Nell Jessup Newton

Journal Articles

For a presentation, I read the eighty-five cases published in the Indian Law Reporter during 1996. I was struck by the diversity of the issues, the difficulty, complexity and subtlety of the choice of law, and other procedural and substantive issues addressed. I was most impressed by the richness of the dialogue in tribal court opinions—a dialogue between the court and the tribal councils, tribal people, and members of the bar. One may also read the opinions as initiating a conversation with the general public. A conversation requires listening, however.

In this article, I will bring to light the work …

Joint Custody: Bonding And Monitoring Theories, Margaret F. Brinig, F. H. Buckley

Journal Articles

Symposium: Law and the New American Family Held at Indiana University School of Law - Bloomington Apr. 4, 1997

No-Fault Laws And At-Fault People, Margaret F. Brinig, F. H. Buckley

Journal Articles

Absent transaction costs, the Coase Theorem suggests that divorce reform would work no change in the frequency of divorce but perhaps would alter the distribution of marital wealth. However, divorce does involve substantial process costs, which no-fault lowered. This paper explores the question of what happened to state divorce rates because of the legal changes wrought by the family law revolution that began in the 1970s, isolating the effect of the legal variable from other demographic and social factors that might also explain the variation in divorce rates across states and across time.

Does A Conspiracy To Terminate At-Will Employment Constitute An Injury To Property? An Analysis Of Haddle V. Garrison, Barbara J. Fick

Journal Articles

This article previews the Supreme Court case Haddle v. Garrison, 525 U.S. 121 (1998). The author expected the Court to determine whether the termination of an at-will employee can be compensible under 42 U.S.C. § 1985, one of the Reconstruction Era Civil Rights Act.

Who's Responsible? Employer Liability For Supervisors' Hostile-Environment Sexual Harassment: An Analysis Of Faragher V. City Of Boca Raton, Barbara J. Fick

Journal Articles

This article previews the Supreme Court case Faragher v. City of Boca Raton, 524 U.S. 775 (1998). The author expected the Court to address the issue of under what circumstances an employer is liabile under title VII of the Civil Rights Act of 1964 for a supervisor's sexual harassement that creates a hostile work environment.

The Supreme Court's Impact On Marriage, 1967-90, Margaret F. Brinig

Journal Articles

In the twenty years following Loving, the Supreme Court decided a number of cases dealing with the family. Although the Court reasoned that it was protecting marriage and extending such protection to other forms of families, the perverse effect of these decisions was to weaken the most traditional family type of all, the nuclear family. Adults, and particularly pregnant women and unwed fathers, triumphed in this move towards autonomy and rights. The vanquished included those who depended upon the family for love and sustenance: minor children, elderly adults, and longtime homemakers.

This paper discusses these cases from a family law …

Fundamental Rights, Moral Law, And The Legal Defense Of Life In A Constitutional Democracy, Martin Rhonheimer, Paolo G. Carozza

Journal Articles

Article by Martin Rhonheimer, translated by Paolo G. Carozza.

Natural Law And The Ethics Of Discourse, John M. Finnis

Journal Articles

This essay argues that Plato's critical analysis of the ethics of discourse is superior to Habermas', and more generally that Habermas has no sufficient reason to propose or suppose the philosophical superiority of "modernity." The failure of Hume and Kant and much modern philosophy to understand the concept and content of reasons for action underlies Habermas' attempted distinction between ethics and morality, and Rawls' concept of public reason. A proper study of discourse also yields a metaphysics of the person, and thus reinforces the ethics.

Kann Das Deutsche Verfassungsrechtsdenken Vorbild Fur Die Vereinigten Staaten Sein?, Donald P. Kommers

Journal Articles

Mein Thema läßt sich am besten als Frage formulieren: Was können wir Amerikaner von der Erfahrung der Deutschen mit dem Grundgesetz lernen? Diese Frage wurde für gewöhnlich in der anderen Richtung gestellt, näm lich: Was haben die Deutschen vom amerikanischen Verfassungsrecht ge lernt oder was sollten sie von ihm lernen?

Endangered Species Wannabees, John Copeland Nagle

Journal Articles

Environmental law and theories of statutory interpretation have developed side by side in the United States during the past twenty-five years. Many of the leading environmental law cases are also statutory interpretation cases. China is different. China has enacted many environmental statutes, often patterned after foreign laws such as those in the United States, but there are no Chinese environmental law statutory interpretation cases.

This article examines why there are no such cases, and what we may learn from that fact. I am indebted to the work of Professor Stewart, whose engaging article in this symposium issue combines three of …

[1997 Developments Concerning] International Courts And Tribunals, Roger P. Alford, Peter H.F. Bekker

Journal Articles

The most significant developments in 1997 regarding international courts and tribunals are reviewed herein, particularly events relating to the International Court of Justice, the United Nations Compensation Commission (a quasi-tribunal), the International Tribunal for the Law of the Sea, the Iran-United States Claims Tribunal, and the proposed permanent International Criminal Court. Other significant developments relating to the International Criminal Tribunal for the Former Yugoslavia, the International Criminal Tribunal for Rwanda, and dispute settlement within the World Trade Organization are detailed in other reports in this issue.

Review Essay / Criminal Procedure As Constitutional Law, Gerard V. Bradley

Journal Articles

Book review and essay of The Constitution and Criminal Procedure: First Principles by Akhil Reed Amar.

Inculcating Constitutional Values, William K. Kelley

Journal Articles

CONSTITUTIONAL LAW. By Gerald Gunther & Kathleen M. Sullivan. Westbury, New York: Foundation Press. 13th edition, 1997. Pp. xciii, 1553. Cloth, $55.95.

CONSTITUTIONAL LAW. By Geoffrey R. Stone, Louis M. Seidman, Cass R. Sunstein, & Mark V. Tushnet. Boston: Aspen Law and Business Education. 3d Edition, 1996. Pp. ciii, 1814. Cloth, $60.00.

The two leading casebooks on Constitutional Law - one an acknowledged classic and the other fast on its way to becoming one - were recently released in new editions at a time when the challenges facing casebook authors seem greater than ever. Despite the Supreme Court's …

Public Reason, Abortion, And Cloning, John M. Finnis

Journal Articles

Every society, liberal or illiberal, takes a public stand on the question whether abortion is or is not a form of criminal activity. If that question were left to private judgment, people who judge it homicide would be entitled to use force to prevent their fellow citizens engaging in it.

The need for the law and public policy to take a stand has become more and more obvious for two reasons. The first has to do with the standard purpose of abortion, as that term is commonly used: to end the life of a fetus/unborn child. As Jeffrey Reiman argues …

Persistent Organic Pollutants: Regime Formation And Norm Selection, Christina S. Chen

Connecticut Journal of International Law

Persistent Organic Pollutants (POPs) are hazardous and potentially life-threatening toxic chemicals. The international community recently agreed to create an international legally binding instrument to control POPs.' Although myriad questions confront the creation of a new regime, this Comment will focus on the types of norms and control strategies that should be devised in order to establish an effective POPs regime. In order to analyze the issue of norm crafting, Part I of this Comment outlines the background of the POPs problem and the current efforts of the United Nations to establish consensus on the need for a POPs regime. Part …

Building An International Criminal Court For The 21st Century, Bryan F. Macpherson

Connecticut Journal of International Law

This article proposes significant, yet realistic, enhancements to the proposed court's jurisdictional scheme that could vastly increase its usefulness without undermining valid national interests. The proposed court could exercise jurisdiction over certain serious international crimes provided that the affected states have filed declarations accepting the court's jurisdiction over the crime. The proposal assumes that states would file declarations prospectively accepting the court's jurisdiction. In theory, this would set up an international criminal justice system that would operate without requiring any further state consent. However, states also wish to reserve the right to try international criminals in their own courts. The …

The Christian Jurisprudence Of Robert E. Rodes Jr., Thomas L. Shaffer

Journal Articles

When I had the chance to leave law practice and become a fulltime law teacher, I turned, in the time-honored fashion, for advice from my law teachers. The most memorable and persistent of these—the most cheerful, too, and therefore the most hopeful—was Robert E. Rodes, Jr., then a young (36), transplanted New Yorker, Harvard law graduate, and Boston lawyer. He had already come to flourish, in the Aristotelian sense, in the Midwest—in a Catholic university known more for its football players than for its lawyers.

Rodes told me he had come to teaching and to Notre Dame because he wanted …

Commentary On 'Assignment Of Contractual Burdens', Howard Hunter

Research Collection Yong Pung How School Of Law

Professor Michael Furmston begins his fine paper with the statement that ‘Contract textbooks treat it as axiomatic that contractual burdens cannot be assigned’. This commentary can begin with the equally forceful statement that contract textbooks in the United States treat as axiomatic the proposition that most contractual burdens can be freely assigned.

International Decisions: Well Blowout Control Claim. Un Doc. S/Ac.2/Dec.40, 36 Ilm 1343 (1997). United Nations Compensation Commission, Governing Council, December 17, 1996., Roger P. Alford

Journal Articles

The UN Compensation Commission Governing Council held Iraq liable for oil field damages in Kuwait, including damage caused by Allied bombing because a direct link existed between Iraqi conduct and the damage. The panel held that reasonable expenses can include extraordinary costs because Kuwait took reasonable steps in mitigating its expenses. Salaries to permanent Kuwaiti personnel are not a direct result of Iraq's conduct and cannot be reimbursed.