Jurisprudence Commons^™

Formalism And Realism In Commerce Clause Jurisprudence, Barry Cushman

Journal Articles

This Article attempts a reconceptualization of developments in Commerce Clause jurisprudence between the Civil War and World War II by identifying ways in which that jurisprudence was structurally related to and accordingly deeply influenced by the categories of substantive due process and dormant Commerce Clause doctrine. Antecedent dormant Commerce Clause jurisprudence set the terms within which Commerce Clause doctrine was worked out; coordinate developments in substantive due process doctrine set limits upon the scope of Commerce Clause formulations and thus played a critical and underappreciated role in maintaining the federal equilibrium. The subsequent erosion of those due process limitations vastly …

Should A Christian Lawyer Sign Up For Simon's Practice Of Justice?, Thomas L. Shaffer

Journal Articles

In The Practice of Justice, Professor William H. Simon describes justice in a way that differs from the way the Bible describes justice. The big difference is not so much what justice requires (although there is some difference there) as (i) how people decide what justice requires, and (ii) who the "people" are who decide what justice requires. Some of us Christians claim to understand "justice" as the Bible understands it. It may make a difference that, for biblical people, "justice" is righteousness, and righteousness, the Torah teaches, and Rabbi Hillel teaches, and Rabbi Jesus teaches, is practice following upon …

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 …

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 …

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 Pluralist Game: Francis Canavan On Law, Public Morality, And Pluralism In Contemporary America, Gerard V. Bradley

Journal Articles

You may have heard Hadley Arkes's charge — always made in good-natured friendship — that Father Richard John Neuhaus owes him royalties for the title of Neuhaus's wonderful monthly, First Things. After all, Arkes's book of the same name came out first. Father Neuhaus read it and liked it, and, voila, shortly thereafter the magazine appeared. Arkes has a good circumstantial case.

You probably know that one of Father Neuhaus's books is called The Catholic Moment. His thesis is that late twentieth century Americans are living through a "crisis of unbelief." The Roman Catholic Church, Neuhaus argues, can and should …

Good Of Marriage And The Morality Of Sexual Relations, John M. Finnis

Journal Articles

This article examines the morality of sexual relations, referencing the views of many other scholars on the subject including Aquinas, Grisez, Noonan, and Koppelman.

Non-Representational Jurisprudence: A Centennial Reading Of "The Path Of The Law", Robert E. Rodes

Journal Articles

This paper analyzes particular passages in Holmes's famous lecture, and notes important inconsistencies and failings in his approach. After arguing strongly that moral considerations should not enter into legal judgments, he criticizes legal judgments in the light of moral considerations. After defining law as a prediction of what the courts will do, he seems to criticize courts for getting the law wrong in their decisions. His advice to learn the legal profession by studying law from the standpoint of a bad man leaves out of account the numerous potential clients who wish to be law abiding citizens and to seal …

Notre Dame Lawyer - Fall/Winter 1996, Notre Dame Law School

Notre Dame Lawyer

Oh! To Be in England ...

Living and Learning Law in London

Law Can't Do Morality's Job

Keeping the Faith

Faculty Profile: John Mitchell Finnis

After Hours
Dean David T. Link and Habitat for Humanity

Alumni Profiles
Patrick McCartan and Scott Medlock

Student Profiles
The Road Less Travelled

The Kresge Law Library-Progress and Challenges

Overcoming Posner, Gerard V. Bradley

Journal Articles

Book Review of Overcoming Law. By Richard A. Posner. Cambridge: Harvard University Press. 1995.

Maybe A Lawyer Can Be A Servant; If Not…, Thomas L. Shaffer

Journal Articles

Consider the way we American lawyers learn about the relationship between the church and the law: This grand constitutional and legal order we propose to serve is unfolded before us and built up in our minds and hearts; it comes to us out of multi-volume sets of course books, and, like the gods of Canaan, it comes to us as religious: Thomas Jefferson said America was God's New Israel; David Hoffman, the grandfather of legal ethics in America, spoke of the law as a temple and of us lawyers as priests who served in the temple; Law Day speakers commonly …

Rights Talk: The Impoverishment Of Political Discourse And A Nation Under Lawyers (Book Review), Robert E. Rodes

Journal Articles

In these two lively, elegant, and lucid books, Mary Ann Glendon points to an increasing bloody-mindedness in our society, and argues persuasively that law and lawyers are in great part to blame for it. It seems that we are constantly pelting each other with non-negotiable demands backed by the threat of litigation, and that our legal profession has become too venal or too lacking in moral fiber to tell us to lighten up. The first part of the argument is presented in Rights Talk, the second in A Nation Under Lawyers. Both parts are presented with passion, charity, and a …

Response To Hittnger, Gerard V. Bradley

Journal Articles

No abstract provided.

Rethinking The New Deal Court, Barry Cushman

Journal Articles

The story of the "switch in time" is among the most enduring chapters of our constitutional history. It is repeated every year in countless courses in government, history, and constitutional law at the high school, college, and graduate level. One of the great morality plays of American civics, it is a tale both celebratory and cautionary. Its plot is simple, there are good guys and bad guys, and the good guys prevail in the end. Although no comprehensive monograph has been devoted to the subject exclusively, the literature recounting the story is vast and remarkably homogenous-indeed, repetitive. In truncated, composite, …

Pilgrim Law, Robert E. Rodes

Journal Articles

A people's laws are deeply imbedded in its culture. They embody its collective moral reflection, its common understanding of the terms on which human beings are to live together, its customs, its historical experience, and its aspirations for the future. It is perhaps to be expected that Americans should enshrine their constitutional documents, build courthouses like temples, deploy their laws with ruthless practicality, and not take kindly to the suggestion that their laws are less practical than they think. Or that Italians should maintain a legal system like an old palazzo, with imposing staircases you can lose you. breath climbing, …

Severability, John Copeland Nagle

Journal Articles

When a court holds a provision of a statute unconstitutional, a question remains regarding the validity of the remainder of the statute. The court may find that the unconstitutional provision may be severed from the statute and leave the remainder of the statute in effect. Alternatively, the court may hold that the unconstitutional provision cannot be severed and invalidate the entire statute.

This article argues that the jurisprudence surrounding the issue of severability is confusing and inconsistent. After explaining the concept of severability and its ramifications for statutes, I trace the development of the current judicial test for determining when …

With Liberty And Justice For Whom? The Recent Evangelical Debate Over Capitalism (Book Review), Thomas L. Shaffer

Journal Articles

Those who for scholarly or journalistic convenience aggregate hundreds of Christian denominations into four or five "movements" put the radical Christian pacifist Jim Wallis (of Sojourners magazine) and Dr. Jerry Falwell, founder of the Moral Majority, in one theological category. They are both evangelicals, heirs of Calvinism and the Radical Reformation, both practitioners of "conservative Protestant orthodoxy," both believers in the fundamental authority of the Bible.

And, because both of them, and thousands of Christians who follow one or both of them, are trying to respond to the criticism that evangelicalism (or "fundamentalism") neglects social and economic issues, they are …

A Stream Of Legal Consciousness: The Current Of Commerce Doctrine From Swift To Jones And Laughlin, Barry Cushman

Journal Articles

In this article on constitutional development and the New Deal Court, Professor Cushman argues that the conventional story of the Court's radical reversing of its jurisprudence in the face of the Court-packing plan is misconceived. The article instead seeks to demonstrate that Jones & Laughlin, one of the cases comprising the Constitutional Revolution of 1937, was conceptually, stylistically, and doctrinally congruent with the Court's contemporary jurisprudence. The paradigm shift in commerce clause jurisprudence. Professor Cushman contends, came not in 1937, but in 1941 and 1942, after Roosevelt had had an opportunity to refashion the Court with a new generation of …

The Tempting Of America, Gerard V. Bradley

Journal Articles

THE TEMPTING OF AMERICA by Robert Bork. New York: The Free Press/Macmillan, 1990. Hdbd: pp. xiv-432.

In the concluding third of The Tempting of America Robert Bork recounts his unsuccessful fight to gain Senate confirmation to the Supreme Court.

Bork relates his war story to the rest of the book. In the first two-thirds of Tempting, he takes us on a grand tour of the Constitution's career, starting in the courts with Chief Justice John Marshall, on through the Civil War, Reconstruction, and New Deal eras. He finishes with a detailed examination of the Warren, Burger and Rehnquist Courts. …

Tribe's "Jurisprudence Of The Religion Clauses", Gerard V. Bradley

Journal Articles

Laurence Tribe has usefully been described as a constitutional apologist for liberal political causes. His conspicuous opposition to the nomination of Judge Robert Bork to the Supreme Court and his imaginative defenses of Roe v. Wade have fueled that image. Tribe's "jurisprudence of the religion clauses" both confounds and complicates the picture. He sees no constitutional difficulty with public education vouchers, and defends the Catholic Church against "pro-choicers" who would strip its tax-exempt status because of the Bishops' "pro-life" activities. Tribe thinks that a public school moment-of-silence can be consistent with the Constitution and carves out a considerable zone of …

Allocating Risks And Suffering: Some Hidden Traps, John M. Finnis

Journal Articles

The economic analysis of which Adam Smith is a principal founder is helpful in practical reasoning about problems of justice precisely insofar as it systematically calls attention to the side-effects of individual choices and actions and behavior. Still, it would be a mistake to conclude that we need only a more adequate account of the benefits and burdens up for distribution or allocation by those responsible for the common good or general fate. We need also to bear in mind what Smith did not forget and what economics does not comprehend, the requirements of commutative justice. To see this, we …

Natural Law And Justice (Book Review), Robert E. Rodes

Journal Articles

Professor Weinreb's aim in this thoughtful and thought-provoking book is a drastic overhaul of the ongoing debate about natural law. Natural law as he sees it is not a mere theory about the relation of law and morality: it is a comprehensive theory about the place of human beings in the cosmos. As such, it has a profound bearing on legal questions, but not in the way its current proponents have in mind. By recasting the fundamental question of natural law, Weinreb sheds light on many subsidiary questions of legal theory. This is a difficult book, because it is closely …

Some Reasons For A Restoration Of Natural Law Jurisprudence, Charles E. Rice

Journal Articles

The growing influence of utilitarianism and legal positivism in American jurisprudence today and the decline of natural law have produced an ominous shift in the foundation of our legal system. This shift is illustrated by various courts' approaches to momentous legal issues of the Twentieth Century such as abortion and euthanasia. Ultimately, legal positivism is unacceptable as a jurisprudential framework because it provides no inherent limits on the power of the state and no basis for determining what is just. In contrast, the natural law provides a jurisprudential framework that both guides and limits the civil law. It therefore is …

Actual Minds, Possible Worlds (Book Review), Thomas L. Shaffer

Journal Articles

Book review of: Actual Minds, Possible Worlds, by Jerome Bruner; Time, Narrative, and History, by David Carr; Law, Freedom, and Story: The Role of Narrative in Therapy, Society, and Faith, by John C. Hoffman; and Narrative and Morality, by Paul Nelson.

On Reason And Authority In Law's Empire, John M. Finnis

Journal Articles

Law's Empire will shape jurisprudence by its admirably resourceful attention to understanding a community's law "internally". It promotes reflective understanding of the practical argumentation constitutive of the attitude(s) in which that law subsists. But the book neglects some of practical understanding's resources of political and moral theory, and overestimates practical reasoning's power to identify options as the best and the right)

The Unity Of Law & Morality: A Refutation Of Legal Positivism (Book Review), John H. Robinson

Journal Articles

Professor Robinson provides a critique of M.J. Detmold’s book, The Unity of Law & Mortality: A Refutation of Legal Positivism. He argues that the book is flawed for failure to present his adversary’s position and for failure to explain the reasons for embracing an ontological perspective towards all ethics. Despite its ambition, the argument does not get off the ground.

On "The Critical Legal Studies Movement", John M. Finnis

Journal Articles

"The present study critically examines the account of legal thought developed in Roberto Unger's very long article, ""The Critical Legal Studies Movement"" (1983), and tests it against Unger's own account of certain ""exemplary"" difficulties in the Anglo-American law of Contract. These scrutinies reveal that Unger's account fundamentally misunderstands the ways of legal thought, and disguises its misunderstanding behind equivocations on ""(in)determinate"" and ""(un)justified."""

Book Review: Development Control, Geoffrey Bennett

Journal Articles

Mr. Alder's book is a lucid and informative contribution on the subject of development control. The book is largely concerned with analyzing the impact of judicial decisions in the [English] courts on planning law relating to development control.

Truthfulness And Tragedy (Book Review), Thomas L. Shaffer

Journal Articles

This is the third book in which Professor Stanley Hauerwas has developed his "story" approach to Christian ethics. It is a collection of essays, almost all of which appeared in periodicals, written while he was developing his theory more systematically in Vision and Virtue (1974), and in Character and the Christian Life (1975). One of the chapters here, on suicide and euthanasia, was written with Dr. Richard Bondi; two others, on story theology and on Albert Speer's Inside the Third Reich, were written with Father David B. Burrell. The essays are arranged so that they explain and defend Hauerwas' thought …

Book Review, Clarence Emmett Manion

Journal Articles

Reviewing: THE PRICE OF PERFECT JUSTICE. By Macklin Fleming. The Adverse Consequences of Current Legal Doctrine on the American Courtroom. Justice of the California Court of Appeals (Basic Books, Inc. New York).