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The Oxford Handbook on the Sources of International Law

Mary Ellen O'Connell and Caleb M. Day

Book Chapter

Sources and the Legality and Validity of International Law: Natural Law as Source of Extra-Positive Norms, in The Oxford Handbook on the Sources of International Law 562 (Samantha Besson & Jean D’Aspremont eds., 2017).

This chapter posits that international law, like all law, can be understood as a hybrid of positive and natural law. The history of natural law from Ancient Greece to today’s global community reveals that the method used for centuries to explain extra-positive features of law consists of three integral elements. The method uses reason, reflection on nature, and openness to transcendence. Certain contemporary natural law theorists, however, prefer to focus on reason and nature alone. Yet, the history of natural law thinking shows that transcendence is integral to the method. History also reveals that religion is not the only avenue to transcendence. Transcendence completes a natural law method capable of explaining persuasively why law binds in general and why certain principles are superior to positive law.
Theology and Ecology Across the Disciplines: On Care for our Common Home

Mary Ellen O'Connell and Marie-Claire Klassen

Book Chapter

Mary Ellen O’Connell & Marie-Claire Klassen, Law for and from the Natural World, in Theology and Ecology Across the Disciplines: On Care for our Common Home 213 (Celia Deane-Drummond & Rebecca Artinian-Kaiser eds., 2018).

Humanity’s earliest attempts to protect the natural world have combine theological, philosophical, scientific, economic and legal concepts. As the 2015 Paris talks on climate change demonstrated, law is currently the most important, readily available means for putting ideas with global impact into action. At the same time, law is only as effective as our commitment to it allows.

This chapter looks at one factor in improving law compliance: the decline of long held assumptions as to why anyone should obey legal rules.

Answers did emerge from outside the legal, field, particularly economics. Economic theory of law, known as “law and economics, “ has become the prevailing legal theory in United States law schools and increasingly beyond the United States.

Theologians once supplied reasons for compliance, as well as the objects and purpose of law. Theology, however, has declined as a source of answers to questions of legal theory. This chapter will show how economic theories of law that prevail today are insufficient to fill theology’s former role.
Effectively Representing Your Client Before the IRS

Patrick W. Thomas and Christina Thompson

Book Chapter

Patrick W. Thomas & Christina Thompson, Assisting Taxpayers with Disabilities, in Effectively Representing Your Client Before the IRS (Keith Fogg ed., 7th ed. 2018)

Written by some of the most experienced tax controversy lawyers in the United States, this two-volume reference provides an in-depth discussion of the law. It is replete with realistic examples and hundreds of practice tips to aid tax practitioners during all stages of representation before the IRS in controversy matters, including exam, appeals, Tax Court, refund actions, and collection matters. Coverage includes updates pertaining to relevant provisions contained in the 2017 Tax Act. The companion DVD contains select audio and video recordings, gleaned from past ABA Section of Taxation meetings, and is supplemented with meeting materials relevant to your practice.
Complex Litigation and Its Alternatives

Jay Tidmarsh and Roger H. Trangsrud

This text is a comprehensive treatise examining the challenges presented by complex litigation. Subjects covered include devices for aggregating large numbers of claims (including extended discussions of multidistrict litigation and class actions), techniques to narrow issues and efficiently gather evidence during pretrial, methods to conduct trials in mass disputes, and ways to provide remedies for widespread harm. Although the focus is on litigation, the book also explores the increasing use of alternative methods to resolve mass disputes. The book is theoretically sophisticated enough for use in academic research or legal practice, but written in a manner to be accessible to students. The book is designed to be compatible with all existing casebooks on complex litigation, but it can also serve as a stand-alone text for the classroom. Occasional problems and questions guide student understanding
Research Handbook on Fiduciary Law

Julian Velasco and Paul B. Miller

Book Chapters

Julian Velasco, Delimiting Fiduciary Status, in Research Handbook on Fiduciary Law 76 (D. Gordon Smith & Andrew Gold eds., 2018).

Paul B. Miller, Dimensions of Fiduciary Loyalty, in Research Handbook on Fiduciary Law 180 (D. Gordon Smith & Andrew Gold eds., 2018).

A familiar problem to scholars of fiduciary law is that of definition. Fiduciary law has been called “messy,” “elusive,” and “unusually vexing.” In part, this is because fiduciary law principles appear in many areas of law, but are applied differently in each. This has made the development of a unified theory difficult. Some scholars have doubted whether it is even possible; others have insisted that it is not possible. Nevertheless, scholars continue to try to bring order to the perceived chaos. My goal in this short paper will be to sketch out the contours of a reasonably coherent theory that covers enough phenomena to have a plausible claim to descriptive accuracy while also providing objective criteria for the exclusion of marginal cases. While a simple definition would be nice, some complexity may be necessary in order to achieve this goal.
Federalism

Anthony J. Bellia

This exciting book by Anthony J. Bellia is a unique collection of legal and scholarly materials intended for use in a range of courses, including Constitutional Law, Federalism, Federalism History, Federalism Theory, and Comparative Federalism. The first book of its kind, Federalism spans traditional subject areas, which allows a deeper and richer treatment of the subject.

Features:
- Considers federalism questions across subject areas
- Transcends lines drawn by courses such as Constitutional Law, Federal Courts, and Civil Procedure
- Enables fuller and richer treatment of the subject of federalism
- Includes primary historical and theoretical sources relating to legal development and enduring questions
- Increases understanding of constitutional doctrine and fosters interdisciplinary learning
- Presents foundational materials useful for a range of courses on federalism
The Law of Nations and the United States Constitution

Anthony J. Bellia and Bradford R. Clark

The Law of Nations and the United States Constitution offers a new lens through which anyone interested in constitutional governance in the United States should analyze the role and status of customary international law in U.S. courts. The book explains that the law of nations has not interacted with the Constitution in any single overarching way. Rather, the Constitution was designed to interact in distinct ways with each of the three traditional branches of the law of nations that existed when it was adopted--namely, the law merchant, the law of state-state relations, and the law maritime. By disaggregating how different parts of the Constitution interacted with different kinds of international law, the book provides an account of historical understandings and judicial precedent that will help judges and scholars more readily identify and resolve the constitutional questions presented by judicial use of customary international law today. Part I describes the three traditional branches of the law of nations and examines their relationship with the Constitution. Part II describes the emergence of modern customary international law in the twentieth century, considers how it differs from the traditional branches of the law of nations, and explains why its role or status in U.S. courts requires an independent, context-specific analysis of its interaction with the Constitution. Part III assesses how both modern and traditional customary international law should be understood to interact with the Constitution today.
The Oxford Handbook of American Sports Law

Edmund P. Edmonds

Book Chapter

Ed Edmonds, Athlete Representation, in The Oxford Handbook of American Sports Law (Michael A. McCann, ed. 2017).

The sports agent performs a critical function as an intermediary between management and athletes by handling contract negotiations, endorsements, financial planning, and other associated activities. This chapter provides a history of athlete representation beginning in the 1920s with the efforts of Christy Walsh and Charles C. Pyle through the increased role of players associations during the final third of last century. In the 1980s, professional associations and state legislatures launched efforts to regulate agent behavior as a reaction to evidence of abuse. In the 2000s, these problems prompted the National Conference of Commissioners on Uniform State Laws to introduce the Uniform Athlete Agents Act, a legislative initiative ultimately adopted by over 80% of states, and the U.S. Congress passed the Sports Agent Responsibility Trust Act. Both initiatives addressed the tension between the NCAA’s amateurism standards and efforts by agents to attract clients before the completion of their eligibility.
Baseball Meets the Law: A Chronology of Decisions, Statutes and Other Legal Events

Edmund P. Edmonds and Frank G. Houdek

Baseball and law have intersected since the primordial days. In 1791, a Pittsfield, Massachusetts, ordinance prohibited ball playing near the town's meeting house. Ball games on Sundays were barred by a Pennsylvania statute in 1794.

In 2015, a federal court held that baseball's exemption from antitrust laws applied to franchise relocations. Another court overturned the conviction of Barry Bonds for obstruction of justice. A third denied a request by rooftop entrepreneurs to enjoin the construction of a massive video screen at Wrigley Field.

This exhaustive chronology traces the effects the law has had on the national pastime, both pro and con, on and off the field, from the use of copyright to protect not only equipment but also "Take Me Out to the Ball Game" to frequent litigation between players and owners over contracts and the reserve clause. The stories of lawyers like Kenesaw Mountain Landis and Branch Rickey are entertainingly instructive.
National Security Law and the Constitution

Jimmy Gurule and Geoffrey S. Corn

This new casebook provides a comprehensive examination and analysis of the inherent tension between the Constitution and select national security policies, and explores the multiple dimensions of that conflict. Specifically, this first edition explores key points where constitutional law directs or restricts the development of national security policy, its implementation, and oversight. Each chapter focuses on critically important precedents, offering targeted questions following each case to assist students in identifying key concepts to draw from the primary sources. Offering students a comprehensive yet focused treatment of key national security law concepts, National Security Law and the Constitution is well suited for a course that is as much an advanced “as applied” constitutional law course as it is a national security law course, as well as for use in advanced international relations and national security policy courses.
Environmental Law and Economics

Bruce R. Huber and Klaus Mathis

Book Chapter

Bruce R. Huber, Temporal Spillovers, in Environmental Law and Economics 43 (Klaus Mathis and Bruce R. Huber eds., 2017)

This anthology discusses important issues surrounding environmental law and economics and provides an in-depth analysis of its use in legislation, regulation and legal adjudication from a neoclassical and behavioural law and economics perspective.

Environmental issues raise a vast range of legal questions: to what extent is it justifiable to rely on markets and continued technological innovation, especially as it relates to present exploitation of scarce resources? Or is it necessary for the state to intervene? Regulatory instruments are available to create and maintain a more sustainable society: command and control regulations, restraints, Pigovian taxes, emission certificates, nudging policies, etc. If regulation in a certain legal field is necessary, which policies and methods will most effectively spur sustainable consumption and production in order to protect the environment while mitigating any potential negative impact on economic development? Since the related problems are often caused by scarcity of resources, economic analysis of law can offer remarkable insights for their resolution.

Part I underlines the foundations of environmental law and economics. Part II analyses the effectiveness of economic instruments and regulations in environmental law. Part III is dedicated to the problems of climate change. Finally, Part IV focuses on tort and criminal law. The twenty-one chapters in this volume deliver insights into the multifaceted debate surrounding the use of economic instruments in environmental regulation in Europe.

The chapter written by Prof Huber, Temporal Spillovers,discusses the fact that for decades, the discipline of law and economics in the U.S. has offered a broader perspective to the analysis of legislation and jurisdiction compared to the European countries. While this is due to [a] number of reasons, this article emphasizes the importance of the different legal cultures, offering analyses of the British, French, German, and European legal framework. Although these differences seem to be rooted in structural differences and thus may persist for some time, there are areas of overlapping interests and similar approaches of applying methods of law and economics. The article focuses on these tendencies and offers a deeper analysis in the area of environmental protection
Settled Versus Right: A Theory of Precedent

Randy J. Kozel

In this timely book, Randy J. Kozel develops a theory of precedent designed to enhance the stability and impersonality of constitutional law. Kozel contends that the prevailing approach to precedent in American law is undermined by principled disagreements among judges over the proper means and ends of constitutional interpretation. The structure and composition of the doctrine all but guarantee that conclusions about the durability of precedent will track individual views about whether decisions are right or wrong, and whether mistakes are harmful or benign. This is a serious challenge, but it also reveals a path toward maintaining legal continuity even as judges come and go. Kozel's account of precedent should be read by anyone interested in the nature of the judicial role and the trajectory of constitutional law.
Theology as Interdisciplinary Inquiry: Learning with and from the Natural and Human Sciences

Mary Ellen O'Connell

Book Chapter

Mary Ellen O'Connell, Law, Theology, and Aesthetics: Identifying the Sources of Authority, in Theology as Interdisciplinary Inquiry: Learning with and from the Natural and Human Sciences 112 (Robin W. Lovin and Joshua Mauldin eds., 2017).

This discussion of law, theology, and aesthetics will use a method that reflects the interdisciplinary discussions between law and theology in CTI's (The Center of Theological Inquiry) Inquiry on Law and Religious Freedom. The aim is to forge a new path to resolving ancient issues that developed with the separation of two once closely related disciplines, law and religion. In answering the question "Why should law have the power to command obedience of those subject to the law?" this essay will reflect on religious, aesthetic, and other answers, arguing for aesthetics as the approach that can bridge the long separation of law and religion in the West. Aesthetics is a compelling common source of insight to support the flourishing of humanity in community and in the natural world. (p.113-114)

In the book, leading scholars in ethics, theology, and social science sum up three years of study and conversation regarding the value of interdisciplinary theological inquiry. This is an essential and challenging collection for all who set out to think, write, teach, and preach theologically in the contemporary world.
Reforming Criminal Justice

Stephen F. Smith

Book Chapter

Stephen F. Smith, Overfederalization in Reforming Criminal Justice: Volume 1: Introduction and Criminalization 39 (Erik Luna ed., 2017)

Since the 1960s, Congress has steadily expanded the crimefighting reach of the federal government. Unfortunately, the constant drumbeat to “federalize” criminal law by passing more federal statutes, ratcheting up already severe federal punishments, and expanding the federal prison population has accomplished precious little in terms of public safety. The failed drug war proves as much. Worst still, the virtually limitless and unchecked charging authority of federal prosecutors undermines the effectiveness of American criminal justice. Instead of complementing state efforts by focusing on areas of federal comparative advantage, federal prosecutors waste scarce resources “playing district attorney”—that is to say, pursing the same kinds of crimes that state prosecutors do. The result is a federal prison population that is bursting at the seams, and a national drug problem that has never been worse. The solution is for Congress to undertake a major overhaul of federal criminal law. The number and scope of federal criminal statutes should be drastically reduced, and the definition of federal crimes tightened and modernized, to limit federal enforcement to offenses that are of peculiar concern to the federal government and offenses that defy adequate response within the state system. Sentencing policies that generate unusually severe punishment in federal court, such as harsh statutory mandatory minimums for drug and nonviolent weapons offenses, and overbroad asset forfeiture laws, should be repealed or at least reformed to eliminate incentives for prosecutors to pursue garden-variety criminal matters in federal court. In this context, as in many others, “less is more”: a streamlined federal criminal code limited to the nation’s worst offenses, which reserves major penalties for major crimes, will better protect the public than our costly and ineffective current system of overfederalization.
Oxford Handbook of Law, Regulation, and Technology

O. Carter Snead and Stephanie Maloney

Book Chapter

O. Carter Snead & Stephanie A. Maloney, Technology and the American Constitution in Oxford Handbook of Law, Regulation, and Technology 296 (Eloise Scotford, Karen Yeung & Roger Brownsend eds., 2017)

This chapter examines how the structural provisions of the American Constitution and the federalist system of government they create uniquely shape the landscape of regulation for technology in the United States. The chapter’s inquiry focuses on the biomedical technologies associated with assisted reproduction and embryo research. These areas present vexing normative questions about the introduction and deployment of these technologies, showing the mechanisms, dynamics, virtues, and limits of the federalist system of government for the regulation of technology. In particular, the differing jurisdictional scope of federal and state regulation results in overlap and interplay between the two regulatory systems. The consequence of this dynamic is often a wide divergence in judgments about law and public policy. The chapter’s review of the constitutionally fragmented regime currently regulating different biotechnologies questions whether such a decentralized approach is well suited to technologies that involve essential moral and ethical judgments about the human person.
Spirituality and Religion within the Culture of Medicine: From Evidence to Practice

O. Carter Snead and Michael Moreland

Book Chapter

O. Carter Snead & Michael Moreland, Law, Religion, and the Physician-Patient Relationship, in Spirituality and Religion within the Culture of Medicine: From Evidence to Practice 293 (Dr. Michael Balboni and Dr. John Peteet eds., 2017).

Spirituality and Religion Within the Culture of Medicine provides a comprehensive evaluation of the relationship between spirituality, religion, and medicine evaluating current empirical research and academic scholarship.

Recognizing the interdisciplinary aspects of spirituality, religion, and health, the book turns to academic scholarship outside the field of medicine to consider cultural dimensions that form clinical practice. Social-scientific, practical, and humanity fields include psychology, sociology, anthropology, law, history, philosophy, and theology. This is the first time in a single volume that readers can reflect on these multi-dimensional, complex issues with contributions from leading scholars.

This book will provide trainees and clinicians with an introduction to the field of spirituality, religion, and medicine, and its multi-disciplinary approach will give researchers and scholars in the field a critical and up-to-date analysis
2017 Supplement to Civil Procedure: Rules, Statutes, and Recent Developments

Jay Tidmarsh, Suzanna Sherry, and Thomas D. Rowe Jr

The 2017 Statutory and Case Supplement brings the casebook up-to-date, noting new developments in a short introductory section. Because the supplement also includes edited versions of the most important new cases, as well as the Federal Rules of Civil Procedure, the Constitution, and relevant statutes, it can be used with any civil procedure casebook.
Accounting for Lawyers, Concise 5th ed.

Matthew J. Barrett and David R. Herwitz

The concise version of the most widely adopted text in the field continues to respond to a demand for a briefer, less detailed casebook that introduces novices to how accounting issues frequently arise in the practice of law. Designed specifically for one- and two-credit hour courses for law students with no accounting background, the text of the Concise Fifth Edition is more than forty percent shorter than the Fifth Edition, so students will find this text less expensive and easier to master. The Concise Fifth Edition offers a broad overview of the field, which its earliest predecessor, the first casebook on accounting law for students, pioneered almost 70 years ago.
The Law of Electronic Surveillance

Patricia L. Bellia, James G. Carr, and Evan A. Creutz

The Law of Electronic Surveillance provides objective analysis of issues related to the government's gathering of evidence through electronic devices. Providing more than 2,500 case citations, it covers major developments and important cases. Key topics include:
- Challenging court-ordered wiretaps
- Electronic search warrants
- Foreign intelligence surveillance
- Suppression of evidence obtained
- Voice exemplars and other identification evidence
- Electronic surveillance of a defendant's attorney
- Legal uses that may be made of evidence obtained from electronic surveillance
- Confronting and challenging electronic surveillance
- Executing an electronic search
- Criminal penalties and civil remedies for illegal electronic surveillance
- Electronic surveillance types and legal developments prior to 1968
- Title III
The Constitution of the United States

Samuel L. Bray, Michael S. Paulsen, Steven G. Calabresi, Michael W. McConnell, and William Baude

This casebook emphasizes the text, structure, and history of the Constitution. It uses "great cases" for learning the major issues in constitutional law, and it gives less attention to small ripples of contemporary doctrine. It emphasizes the task of interpretation, including many examples of the interpretation of the Constitution by the political branches. And it includes features of our constitutional history that are neglected in many casebooks, such as slavery, the amendment process, and the early history of the freedom of speech. The third edition has many refinements. It also has more coverage of executive discretion, the taxing and spending powers, the Necessary and Proper Clause, incorporation, and the drafting of the Fourteenth Amendment. It is now suitable not only for a survey course, but also for a course focused on federalism, on the First Amendment, or on the Fourteenth Amendment.
The International Survey of Family Law

Margaret Brinig

Book Chapter

Margaret Brinig, Marital Property in The International Survey of Family Law 509 (Bill Atkins ed., 2016)
Italian Constitutional Justice in Global Context

Paolo G. Carozza, Vittoria Barsotti, Marta Cartabia, and Andrea Simoncini

Italian Constitutional Justice in Global Context is the first book ever published in English to provide an international examination of the Italian Constitutional Court (ItCC), offering a comprehensive analysis of its principal lines of jurisprudence, historical origins, organization, procedures, and its current engagement with transnational European law. The ItCC represents one of the strongest and most successful examples of constitutional judicial review, and is distinctive in its structure, institutional dimensions, and well-developed jurisprudence. Moreover, the ItCC has developed a distinctive voice among global constitutional actors in its adjudication of a broad range of topics from fundamental rights and liberties to the allocations of governmental power and regionalism. Nevertheless, in global constitutional dialog, the voice of the ItCC has been almost entirely absent due to a relative lack of both English translations of its decisions and of focused scholarly commentary in English.

This book describes the "Italian Style" in global constitutional adjudication, and aims to elevate Italian constitutional jurisprudence to an active participant role in global constitutional discourse. The authors have carefully structured the work to allow the ItCC's own voice to emerge. It presents broad syntheses of major areas of the Court's case law, provides excerpts from notable decisions in a narrative and analytical context, addresses the tension between the ItCC and the Court of Cassation, and positions the development, character, and importance of the ItCC's jurisprudence in the larger arc of global judicial dialog.
Between Rights and Responsibilities: A Fundamental Debate

Douglass Cassel and Barbara Fick

Book Chapters

Douglass Cassel, Steering Clear of the Twin Shoals of a Rights-Based Morality and a Duty-Based Legality, in Between Rights and Responsibilities: A Fundamental Debate 51 (Stephan Parmentier, Hans Werdmödler and Michaël Merrigan eds., 2016).

Chapter Contents
The Poverty of a Rights-Based Morality
A Religious Perspective
Affirmative Duties in International Human Rights Instruments
- Universal Declaration of Human Rights
- American Declaration of the Rights and Duties of Man
- African Charter of Human and Peoples' Rights
Duties as Restrictions on Rights
Codifications of Duites
'Horizontal' versus 'Vertical' Duties
Conclusion

Barbara Fick, Human Rights in a Globalising Economy: Rights and Responsibilities of Trade Unions, in Between Rights and Responsibilities: A Fundamental Debate 113 (Stephan Parmentier, Hans Werdmödler and Michaël Merrigan eds., 2016).

Chapter Contents
Introduction Unions as Beneficiaries of Human Rights Protection
The 'Traditional' Role of Trade Unions
The Importance for Unions to Perform a Broader Role
Are Trade Unions Fulfilling their Responsibility?
The Way Ahead
Equality and Religious Liberty: Oppressing Conscientious Diversity in England

John Finnis

Book Chapter

Equality and Religious Liberty: Oppressing Conscientious Diversity in England, in Religious Freedom and Gay Rights: Emerging Conflicts in the United States and Europe 21 (Timothy Shah, Thomas Farr, and Jack Friedman eds., 2016).

"When these analyses and reflections were first drafted, in 2012, the stories they focused upon outlined a situation ominous for conscience, religion, and civil liberty. By the time they were supplemented and completed in 2015, the stories had almost all ended badly, and the outlines of an oppressive new settlement had been etched deeply into English law and civil society. Oppression in the name of equality and diversity sharply attacks those very values, even as it deepens the other wounds it inflicts on the substance of our common good and the sustainability of our people." (21)
American Conservatism

Richard W. Garnett

Book Chapter

Richard W. Garnett, The Worms and the Octopus: Religious Freedom, Pluralism, and Conservatism, in American Conservatism (Sanford V. Levinson et al. eds., 2016)

A formidable challenge for an academic lawyer hoping to productively engage and intelligently assess “American Conservative Thought and Politics” is answering the question, “what, exactly, are we talking about?” The question is difficult, the subject is elusive. “American conservatism” has always been protean, liquid, and variegated – more a loosely connected or casually congregating group of conservatisms than a cohesive and coherent worldview or program. There has always been a variety of conservatives and conservatisms – a great many shifting combinations of nationalism and localism, piety and rationalism, energetic entrepreneurism and romanticization of the rural, skepticism and crusading idealism, elitism and populism – in American culture, politics, and law.

That said, no one would doubt the impeccably conservative bona fides of grumbling about the French Revolution and about 1789, “the birth year of modern life.” What Russell Kirk called “[c]onscious conservatism, in the modern sense” first arrived on the scene with Burke’s Reflections on the Revolution in France, and at least its Anglo-American varieties have long been pervasively shaped by his reaction. As John Courtney Murray put it, Burke’s targets included those “French enthusiasts” who tolerated “no autonomous social forms intermediate between the individual and the state” and who aimed to “destroy[]…all self-governing intermediate social forms with particular ends.” I suggest, then, that to be “conservative” is at least and among other things to join Burke in rejecting Rousseau’s assertions that “a democratic society should be one in which absolutely nothing stands between man and the state” and that non-state authorities and associations should be proscribed. In other words, to be “conservative” is to take up the cause of Hobbes’s “worms in the entrails” and to resist the reach of Kuyper’s “octopus.” At or near the heart of anything called “conservatism” should be an appreciation and respect for the place and role of non-state authorities in promoting both the common good and the flourishing of persons and a commitment to religious freedom for individuals and institutions alike, secured in part through constitutional limits on the powers of political authorities. Accordingly, one appropriate way for an academic lawyer to engage “American Conservative Thought and Politics” is to investigate and discuss the extent to which these apparently necessary features or elements of conservatism are present in American public law. Pluralism and religion, in other words, are topics that should provide extensive access to this volume’s subject.