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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
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
Peace Through Law: Reflections on Pacem in Terris from Philosophy, Law, Theology, and Political Science

Mary Ellen O'Connell and Samuel T. Tessema

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 Applications in European Law and Economics

Avishalom Tor and Klaus Mathis

Editors: Klaus Mathis & Avishalom Tor

From the Publisher

This anthology provides an in-depth analysis and discusses the issues surrounding nudging and its use in legislation, regulation, and policy making more generally. The 17 essays in this anthology provide startling insights into the multifaceted debate surrounding the use of nudges in European Law and Economics.

Nudging is a tool aimed at altering people’s behaviour in a predictable way without forbidding any option or significantly changing economic incentives. It can be used to help people make better decisions to influence human behaviour without forcing them because they can opt out. Its use has sparked lively debates in academia as well as in the public sphere. This book explores who decides which behaviour is desired. It looks at whether or not the state has sufficient information for debiasing, and if there are clear-cut boundaries between paternalism, manipulation and indoctrination. The first part of this anthology discusses the foundations of nudging theory and the problems associated, as well as outlining possible solutions to the problems raised. The second part is devoted to the wide scope of applications of nudges from contract law, tax law and health claim regulations, among others.

This volume is a result of the flourishing annual Law and Economics Conference held at the law faculty of the University of Lucerne. The conferences have been instrumental in establishing a strong and ever-growing Law and Economics movement in Europe, providing unique insights in the challenges faced by Law and Economics when applied in European legal traditions.
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.
Comparative Legal Traditions in a Nutshell, 4th ed.

Paolo G. Carozza, Mary Ann Glendon, and Colin B. Picker

From the Publisher

This nutshell offers a general introduction to comparative law that includes both an overview of the methods of comparative law as well as of the two most widespread legal traditions in the world: civil (or Romano-Germanic) law and common law. For both legal traditions, this expert discussion covers their history; legal structures, including constitutional systems, courts, and judicial review; the roles of central legal actors, including lawyers, judges, and scholars; an overview of civil and criminal procedure; the principal sources of law and divisions of substantive law; and the judicial process. Throughout, the discussion also includes references to the place and the importance of supranational law and institutions and their impact on the civil law and common law traditions in Europe.
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

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.
The Law of Electronic Surveillance: August 2014 Volumes 1 & 2

Patricia L. Bellia and James G. Carr
On Solidarity in International Law

Paolo G. Carozza and Luigi Crema

The scope of this reflection is on the actual and possible function of the concept of solidarity in international law. The discussion has both a descriptive aim, to examine the place of solidarity within international law today, and a normative aim that looks at the desirable evolution of this concept. Although increasingly invoked in the international sphere generally, the concept of solidarity has an uncertain status in international law. Despite having a longer history especially in Christian thought and certain earlier juridical and political antecedents (some quite contradictory to its use today), its advent in international law is relatively new. Solidarity today could be understood in the abstract as a basic observable condition of the international environment, as a principle of international law, as a (human) right, or as a fundamental moral value. Seen from within the practical experience of international law today, it is best understood as a relatively weak legal principle, which rarely if ever outweighs the international legal system’s continuing foundation in the principles of sovereignty and state consent. Solidarity does, however, have stronger underpinnings as a moral value. The place of solidarity in Catholic social teaching deepens our understanding of the possible significance of subsidiarity in the international legal system. In Catholic thought, subsidiarity is both a virtue and a moral principle that calls all men and women to commit themselves “to the good of all and of each individual.” It is closely related to charity and fraternity, and finds its fullest expression in gratuitousness, or freedom. This in turn leads to a need to reconcile solidarity with the freedom of states in the international sphere, including through the mediating principle of subsidiarity.
Comparative Legal Traditions: Text, Materials and Cases on Western Law, 4th ed.

Paolo G. Carozza, Mary Ann Glendon, and Colin B. Picker

From the Publisher

This new edition includes some significant revisions since the last edition was published in 2007. In addition to updating the materials to take into account developments in the law in the examined jurisdictions, the new edition also places discussion of the relevant regional law, for the most part European Union and Council of Europe law, within the examinations of the specific legal systems themselves (more accurately reflecting the realities of operating within those systems). In addition, there are updates and addition to the in-depth chapters focusing on discrete comparative problems and exercises.
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.
Lost Classroom, Lost Community: Catholic Schools' Importance in Urban America

Nicole Stelle Garnett and Margaret F. Brinig

In the past two decades in the United States, more than 1,600 Catholic elementary and secondary schools have closed, and more than 4,500 charter schools—public schools that are often privately operated and freed from certain regulations—have opened, many in urban areas. With a particular emphasis on Catholic school closures, Lost Classroom, Lost Community examines the implications of these dramatic shifts in the urban educational landscape.

More than just educational institutions, Catholic schools promote the development of social capital—the social networks and mutual trust that form the foundation of safe and cohesive communities. Drawing on data from the Project on Human Development in Chicago Neighborhoods and crime reports collected at the police beat or census tract level in Chicago, Philadelphia, and Los Angeles, Margaret F. Brinig and Nicole Stelle Garnett demonstrate that the loss of Catholic schools triggers disorder, crime, and an overall decline in community cohesiveness, and suggest that new charter schools fail to fill the gaps left behind.

This book shows that the closing of Catholic schools harms the very communities they were created to bring together and serve, and it will have vital implications for both education and policing policy debates.
Contraception & Persecution

Charles E. Rice and Steve Mosher

“Contraceptive sex,” wrote social science researcher Mary Eberstadt in 2012, “is the fundamental social fact of our time.” In this important and pointed book, Charles E. Rice, of the Notre Dame Law School, makes the novel claim that the acceptance of contraception is a prelude to persecution. He makes the striking point that contraception is not essentially about sex. It is a First Commandment issue: Who is God? It was at the Anglican Lambeth Conference of 1930 when for the first time a Christian denomination said that contraception could ever be a moral choice. The advent of the Pill in the 1960s made the practice of contraception practically universal. This involved a massive displacement of the Divine Law as a normative measure of conduct, not only on sex but across the board. Nature abhors a vacuum. The State moved in to occupy the place formerly held by God as the ultimate moral Lawgiver. The State put itself on a collision course with religious groups and especially with the Catholic Church, which continues to insist on that traditional teacher. A case in point is the Obama Regime’s Health Care Mandate, coercing employees to provide, contrary to conscience, abortifacients and contraceptives to their employees. The first chapter describes that Mandate, which the Catholic bishops have vowed not to obey. Rice goes on to show that the duty to disobey an unjust law that would compel you to violate the Divine Law does not confer a general right to pick and choose what laws you will obey. The third chapter describes the “main event,” which is the bout to determine whether the United States will conform its law and culture to the homosexual (LGBTQ) lifestyle in all its respects. “The main event is well underway and LGBTQ is well ahead on points.” Professor Rice follows with a clear analysis of the 2013 Supreme Court decision on same-sex marriage. Part II presents some “underlying causes” of the accelerating persecution of the Catholic Church. The four chapter headings in this part outline the picture: The Dictatorship of Relativism; Conscience Redefined; The Constitution: Moral Neutrality; and The Constitution: Still Taken Seriously? The answer to the last question, as you might expect, is: No. Part III, the controversial heart of the book, presents contraception as “an unacknowledged cause” of persecution. The first chapter argues that contraception is not just a “Catholic issue.” The next chapter describes the “consequences” of contraception and the treatment of women as objects. The third chapter spells out in detail the reality that contraception is a First Commandment issue and that its displacement of God as the ultimate moral authority opened the door for the State to assume that role, bringing on a persecution of the Church. The last chapter, “A Teaching Untaught,” details the admitted failure of the American Catholic bishops to teach Pope Paul VI’s 1968 encyclical, Humanae Vitae. But Rice offers hope that the bishops are now getting their act together Part IV offers as a “response” to the persecution of the Church three remedies: Speak the Truth with clarity and charity; Trust God; and, most important, Pray. As the last sentence in the book puts it: “John Paul II wrote in a letter to U.S. bishops in 1993: ‘America needs much prayer – lest it lose its soul.’” This readable and provocative book is abundantly documented with a detailed index of names and subjects.