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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.
Religious Freedom and Gay Rights: Emerging Conflicts in North America and Europe

Richard W. Garnett

Book Chapter

Richard W Garnett, Wrongful Discrimination? Religious Freedom, Pluralism, and Equality, in Religious Freedom & Gay Rights: Emerging Conflicts in the United States & Europe 67 (Timothy Shah, Thomas Farr & Jack Friedman eds., 2016).

It will be suggested in this chapter that this tension might be lessened, or at least better managed, if citizens and lawmakers thought more carefully about when and why "discrimination" is wrong and about the moral and constitutional limits on governments' efforts to prevent and remedy, in the name of equality, wrongful discrimination. It will also be proposed that what Pope Emeritus Benedict XVI and others have called "healthy secularity" provides a way of thinking about these matters that is attractive, promising, and appropriately appreciative of pluralism.
The Rise of Corporate Religious Liberty

Richard W. Garnett

Book Chapter

Richarc W. Garnett, The Freedom of the Church:(Toward) and Exposition, Translation, and Defense, in The Rise of Corporate Religious Liberty 39 (Micah Schwartzman, Chad Flanders, & Zoe Robinson, eds., 2016)

This chapter is part of a collection that reflects the increased interest in, and attention to, the corporate, communal, and institutional dimensions of religious freedom. In addition to summarizing and re-stating claims made by the author in earlier work – claims having to do with, among other things, church-state separation, the no-establishment rule, legal and social pluralism, and the structural role played by religious and other institutions – the Article responds to several leading lines of criticism and attempts to strengthen the argument that the idea of “the freedom of the church” (or something like it) is not a relic or anachronism but instead remains a crucial component of any plausible and attractive account of religious freedom under and through constitutionally limited government. It also includes suggestions for some workable and – it is hoped – faithful translations of it for use in present-day cases, doctrine, and conversations.

The Article’s proposal is that “the freedom of the church” is still-important, even if very old, idea. It is not entirely out of place – even if it does not seem to fit neatly – in today’s constitutional-law and law-and-religion conversations. If it can be retrieved and translated, then it should, not out of nostalgia or reaction, but so that the law will better identify and protect the things that matter.
National Security Law and the Constitution

Jimmy Gurule, Jeffrey D. Kahn, 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.
- The text offers students a comprehensive yet focused treatment of key national security law concepts.
- 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.
- The chapters also use text boxes to illustrate key principles with historical events, and to highlight important issues, rules, and principles closely related to the primary sources.
- Text is divided into five parts: The Constitutional Framework, War Powers and Military Force, Crime and National Security, Information and National Security, and Other National Security Responses
Imagining Law: Essays in Conversation with Judith Gardam

Mary Ellen O'Connell

Book Chapter

Mary Ellen O'Connell, The Limited Necessity of Resort to Force, in Imagining Law: Essays in Conversation with Judith Gardam 37 (Dale Stephens and Paul Babie eds., 2016).

"In this contribution to the volume in her honour, I propose to revisit her discussion of necessity in the jus ad bellum in large part to respond to recent interest in characterising necessity as a lawful basis for the resort to armed force." (37)

"The discussion begins with an overview of the general law on resort to force, then turns to a full focus on necessity. The principle of necessity is found in a number of international l aw categories with a distinctive meaning in each. Keeping the various meanings and histories separate is a challenge to scholars. In the area of resort to force, the principle of necessity is a restriction on force; it does not and cannot permit military force. In other categories of international law, necessity may provide a defence to otherwise unlawful action, such as imposition of a trade barrier, but not to the otherwise unlawful resort to military force. The conclusion here is that proposals to expand the right to use force by claiming necessity appear to be based on either a faulty understanding of necessity or faulty reasoning about the legal regime on the use of force. Gardam's analysis of over a decade ago remains solid and astute." (38)
Strengthening the Rule of Law through the UN Security Council

Mary Ellen O'Connell

Book Chapter

Mary Ellen O'Connell, Peace through Law and the Security Council: Modelling Law Compliance, in Strengthening the Rule of Law through the UN Security Council 255 (Jeremy Farrall & Hilary Charlesworth eds., 2016)

Mary Ellen O'Connell argues that the UN has fallen short of fulfilling its purpose of saving 'succeeding generations from the scourge of war'. O'Connell proposes a new strategy for the UNSC to strengthen the ROL, which would support the UN's mission of preserving the peace. The strategy involves the UNSC both as a body and in the individual capacity of members, modelling 'law compliance' with respect to the use of force. This approach echoes the work of regulatory theorists who argue that positive modelling is an effective regulatory strategy to promote self-regulation. According to O'Connell, the principles of necessity and proportionality must govern not just the way force is used, but also the initial decision to authorise force in the first place. Similarly, the UNSC must respect important structural rules of the international legal system, in particular the principle of non-intervention.
Peace Through Law: Reflections on Pacem in Terris from Philosophy, Law, Theology, and Political Science

Mary Ellen O'Connell and Samuel T. Tessema

Book Chapters

Mary Ellen O'Connell & Heinz-Gerhard Justenhoven, Introduction, in Peace Through Law: Reflections on Pacem in Terris from Philosophy, Law, Theology, and Political Science 7 (Heinz-Gerhard Justenhoven & Mary Ellen O’Connell, eds., 2016).

Mary Ellen O'Connell, Belief in the Authority of International Law for Peace: A Reflection on Pacem in Terris

In 1963, Pope John XXIII's renowned peace encyclical Pacem in Terris offered a practical vision beyond the accepted international policies of his time: normative ideas for reforming the UN aimed at a peaceful conflict resolution in a time of globalization. It calls for renewed commitment to the United Nations and international law. Pope John XXIII explained the role of public authorities within nation states in keeping the peace and working together for the common good. He saw the need for similar authority for the international community. Fifty years later, the authors critically debate the ideas for 'global political authority' and global law from their respective perspectives: theology, philosophy, international law, economics, and political science.
Civil Procedure

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

This 750-page civil procedure casebook is structured so that it can be taught quickly but at a high level. The tightly-edited cases capture students’ interest while teaching the material well. Notes are short but intellectually challenging. The book has enough materials to cover topics basically or in depth. The casebook introduces students to the themes running through civil procedure: efficiency and fairness, advantages and disadvantages of the adversarial system, real-life litigation strategies, and issues of federalism and separation of powers. The 4th edition has been updated to include not only the most recent Supreme Court cases, but new cases from the lower federal courts. The 2015 and 2016 cases fully account for the important 2015 amendments to the Federal Rules of Civil Procedure. The teacher's manual suggests strategies for teaching the materials and different approaches for credit allocations and teacher preferences.
2016 Supplement: Civil Procedure, 4th, Rules, Statutes, and Recent Developments

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

The 2016 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.
2016 Supplement, Civil Procedure: Rules, Statutes, and Recent Developments

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

The 2016 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.
Nudging - Possibilities, Limitations and Application in European Law and Economics

Avishalom Tor and Klaus Mathis

Book Chapter

Avishalom Tor, The Critical and Problematic Role of Bounded Rationality in Nudging, in Nudging -- Possibilities, Limitations and Applications in European Law and Economics 3 (Klaus Mathis & Avishalom Tor, eds., 2016).

Nudging has become an increasingly popular policy tool on both sides of the Atlantic, even while scholars and commentators continue to debate its appropriate boundaries, efficacy, and legitimacy. The present chapter outlines a sympathetic, ‘internal’ critique of Nudge’s policy framework (Thaler and Sunstein 2008. Nudge: Improving decisions about health, wealth, and happiness. New Haven: Yale University Press) identifying a fundamental problem that has received little attention to date. Thaler and Sunstein define their key concept as the use of a particular toolkit (rationally-neutral behavioural interventions) to promote a specific policy goal (individuals’ self-judged well-being). To remain within the boundaries of these defining parameters, the chosen toolkit must nudge only by helping boundedly rational people better achieve their own ends. However, a closer look at this intuitively appealing approach reveals a fundamental problem of fit that should trouble even those who support Nudge’s mission. Namely, while the tools of nudging can sometimes promote its declared goals, other tools can often do so equally well or even more effectively. And the tools of nudging are equally suited to promoting goals that are excluded by Nudge’s own framework. This problem of fit causes some of Thaler and Sunstein’s own applications to breach the boundaries of what they define as legitimate nudges and, more significantly, obscures the broader potential of behaviorally-informed policies and the substantial trade-offs involved in their implementation.
United States v. Virginia, 518 US 515 (1996)

Christine Venter and Valerie K. Vojdik

Book Chapter

United States v. Virginia, 518 US 515 (1996), in Feminist Judgments: Rewritten Opinions of the United States Supreme Court 384 (Kathryn M. Stanchi, Linda L. Berger, and Bridget J. Crawford eds., 2016)
- Commentary by Christine Venter
- Judgment by Valerie K. Vojdik
What would United States Supreme Court opinions look like if key decisions on gender issues were written with a feminist perspective? Feminist Judgments brings together a group of scholars and lawyers to rewrite, using feminist reasoning, the most significant US Supreme Court cases on gender from the 1800s to the present day. The twenty-five opinions in this volume demonstrate that judges with feminist viewpoints could have changed the course of the law. The rewritten decisions reveal that previously accepted judicial outcomes were not necessary or inevitable and demonstrate that feminist reasoning increases the judicial capacity for justice. Feminist Judgments opens a path for a long overdue discussion of the real impact of judicial diversity on the law as well as the influence of perspective on judging.
- Contains contributions from more than 50 feminist scholars and lawyers, so readers will learn about feminist reasoning from experienced writers and thinkers
- People interested in the Supreme Court, politics, feminism and women's studies will gain from varied and informed perspectives through a feminist lens
Accounting for Lawyers, 5th ed.

Matthew J. Barrett and David R. Herwitz

This fifth edition of the most widely adopted text in the field demonstrates to novices how accounting issues interrelate with the legal profession. In an effort to make accounting as understandable as possible, this book uses a "learn by doing" approach, including: Illustrative financial statements from Starbucks Corporation Multiple problems using the financial statements from Amazon.com, Inc., Google Inc., and United Parcel Service, Inc. Designed for the law student with no accounting background, the fifth edition can also enable students with previous accounting experience to appreciate better how accounting concepts and financial statements affect legal issues. The first section of each chapter, entitled "Importance to Lawyers," explains how the topics discussed in that chapter affect the practice of law.
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.
Of Courtiers and Kings: Stories of Supreme Court Law Clerks and Their Justices

Barry Cushman

Book Chapter

Barry Cushman, The Clerks to Justices George Sutherland and Pierce Butler, in Of Courtiers and Kings: More Stories of Supreme Court Law Clerks and Their Justices 100 (Todd C. Peppers & Clare Cushman eds., 2015)

The essays contained in the book discuss the changes in the Supreme Court, especially in regards to the role of law clerks in its work. In the past, the justices made their decisions on the basis of the arguments advanced by the parties, their study of the facts of the case, their own research and deliberation and their internal discussions. The changes that have led to greater involvement and compensation for Supreme Court law clerks have transformed the Court. This volume contains the stories of those who were able to serve in the single best job available to a law school graduate.
International Labour Law

Barbara Fick

The role of the ILO in the international labour law regime -- Substantive content of the core labour rights -- Enforcement mechanisms outside the ILO -- Reflections on core labour rights and the future of international labour law.
Supreme Court Labor Cases 2014–15 Term

Barbara Fick

This is section 6 from a symposium called "Recent Developments in Employment Law" hosted by the Indiana Continuing Legal Education Forum, December 10, 2015.
The Constitutional Legacy of William H. Rehnquist

Richard W. Garnett

Book Chapter

Richard W. Garnett, Chief Justice Rehnquist: Religious Freedom, and the Constitution, in The Constitutional Legacy of William H. Rehnquist 1 (Bradford P. Wilson ed., 2015)

It might not have been foreseen that William Rehnquist would have a marked influence on the Supreme Court’s interpretation, construction, and application of the First Amendment’s Religion Clauses. And yet, he certainly did. Kent Greenawalt wrote that Rehnquist – or, more precisely, the “Rehnquist Court” – “turned the constitutional law of religion upside down.” “[W]e have moved,” he reported, “from expansive readings of both of the religion clauses to narrow readings of the Free Exercise Clause and of very important aspects of the Establishment Clause.” It is suggested in this paper that in facilitating and guiding the “move[s]” identified by Greenawalt, Rehnquist for the most part “turned the constitutional law of religion” right-side up, rather than “upside down.” He left the Court’s Religion Clauses doctrine better than it was before, that is, better rooted in the Constitution’s text, history, structure, and values than it was when he joined the Court. In any event, that the “move[s]” happened, and that they happened in no small part because of him, seems beyond dispute. Rehnquist was able, for the most part, to exercise both judicial humility in the face of politically accountable actors’ attempts to deal with debatable questions of policy and morality – including most of the questions that arise in free-exercise and non-establishment cases – and careful review of measures and actions that might compromise the structural integrity of our Constitution. This paper’s appreciative review of his contributions to the Court’s Religion Clauses doctrine will, it is hoped, serve as a reminder that cases involving tension or collision between political and religious authority implicate the “first principles” of our constitutional experiment no less than those involving federal interference with the states’ appropriate functions or regulatory overreach by Congress.
National Security Law and the Constitution

Jimmy Gurule, Geoffrey Corn, Eric Jensen, and Peter Marguiles

This unique new concise treatise provides a highly accessible but also comprehensive and timely supplement for students studying National Security Law. Written by a team of experts in the field, this treatise serves as a useful supplement for the substantively rich but often overwhelming National Security Law texts currently on the market.
National Security Law: Principles and Policy

Jimmy Gurule, Geoffrey Corn, Eric Jensen, and Peter Margulies

Comprehensive and accessible, NATIONAL SECURITY LAW is a guide to the legal foundations that support key national security powers: diplomatic, intelligence, military, economic, and criminal. The authors provide essential sources of national security law, including constitutional text, judicial opinions, statutes,, and policies. Suitable as either a supplement or a stand-alone text, it illustrates national security law principles through discussion of war powers, followed by treatments of topical issues.
The International Legal System: Cases and Materials (7th ed., Foundation Press 2015)

Mary Ellen O'Connell, Richard F. Scott, Naomi Roht-Arriaza, and Daniel D. Bradlow

The world of international law continues to grow and change at an accelerated pace. The International Legal System, 7th Edition captures the critical developments for law students as they prepare for the global legal marketplace.

Important additions include expanded treatment of international environmental law in a new chapter; updates on international legal theory; expanded coverage of cyber law; new cases on jurisdiction ranging from the International Court of Justice’s Jurisdictional Immunity of the State to the U.S. Supreme Court’s Kiobel v. Shell; the latest results of international trade talks, and new cases at the intersection of armed conflict and human rights.

Professor Daniel Bradlow has joined the book following his tenure with the South African Reserve Bank. He and his co-authors are uniquely equipped to carry forward the book’s enduring strength: Investigating the inter-linkages of international, national, and regional law.
Criminal Procedure After Rehnquist

Stephen F. Smith

Book Chapter

Criminal Procedure After Rehnquist, in The Constitutional Legacy of William H. Rehnquist 31 (Bradford P. Wilson ed., 2015)

September 3, 2015 marks the 10th anniversary of the death of Chief Justice William H. Rehnquist. His 33 years on the Supreme Court of the United States made his tenure on the Court the eighth longest in American history. Though much has been written on the Rehnquist Court, relatively little scholarly work has been devoted to Rehnquist's own influence on legal interpretation and the development of Supreme Court doctrine. To assess Rehnquist's constitutional legacy, this volume examines three areas of constitutional interpretation in which he made influential and, it would seem, lasting contributions―federalism, criminal procedure, and the place of religion in America's constitutional design. The contributors to this book are well known for their expertise in these three constitutional domains. By organizing the volume around three central essays and commentaries on each, the book provides not only an overview of Rehnquist's contributions to major constitutional themes, but also differing perspectives on the essays themselves and on Rehnquist's constitutional legacy. Among the contributors to this work are John S. Baker, Jr.; Charles J. Cooper; Donald L. Drakeman; Richard W. Garnett; Kent Greenawalt; R. Shep Melnick; Robert F. Nagel; Stephen J. Schulhofer; and Stephen F. Smith.
European Perspectives on Behavioural Law and Economics

Avishalom Tor

Book Chapter

Avishalom Tor, The Next Generation of Behavioural Law and Economics, in European Perspectives on Behavioural Law and Economics 17 (Klaus Mathis ed., 2015)

This chapter examines some of the important tasks awaiting the next generation of scholarship in behavioural law and economics. Some of these tasks reflect the need for expanding the breadth of the behavioural approach to law while others involve the mission of increasing its depth. The following sections examine each category in turn.
The Law of Electronic Surveillance: August 2014 Volumes 1 & 2

Patricia L. Bellia and James G. Carr
Supreme Court Cases 2013–14 Term

Barbara Fick

This is section 6 from a symposium called "Recent Developments in Employment Law" hosted by the Indiana Continuing Legal Education Forum, December 16, 2014.