Adeline Allen, Sperm and Eggs in Consideration of Money: A Pound of Flesh for Three Thousand Ducats?, 19 Ind. Health L. Rev. 275 (2022)
Donor conception is a practice in which a donor sperm or egg (or both) is used to conceive a child. Usually, the donor sperm or egg is procured in a financial transaction: gametes exchanging hands for money. The "donor" in donor conception is a bit of an oxymoron, for a donation it is not when money--and sometimes big money--is a feature of the practice, not a bug. This Article will show that donor conception is not proper to who human beings are given their nature as embodied beings, with particular attention to the children of donor conception and to the donors. The bargained-for exchange of sperm and eggs for money also does not satisfy the requirement of commutative justice, historically understood to be of paramount importance in the doctrine of consideration in contract law. Further, the aspects of both the embodied nature of the person and the impropriety of trading on the body present in donor conception are considered in light of William Shakespeare's play The Merchant of Venice. This Article concludes that donor conception, being unjust and not oriented to human flourishing, ought not to be done. A re-orientation of the law toward a proper respect for each person's embodied nature and toward fostering a posture of gratitude in receiving each child as a gift would be welcome.
Douglas W. Allen, Symposium: The Institutional Economics of Marriage: A Reinterpretation of Margaret Brinig's Contribution to Family Law, 95 Notre Dame L. Rev. 1537 (2020)
Margaret (Peg) Brinig has made a massive contribution to family law over the course of the past thirty-five years. Spanning the two fields of economics and law, her views have evolved over time to ones that see family as a matter of covenant. The concept of a covenant is mostly unknown in the modern secular world and is absent in economics. Without (hopefully) changing Brinig's meaning, I reinterpret her work and argue that her concept of a covenant is equivalent to the economist's understanding of an institution. The goal of reinterpreting her work in light of institutional economics is to make it more accessible to economists and to provide additional transaction-cost insight into why a covenant is so important.
Raj Bhala, Combatting Nationalism by Applying Catholic Teaching and Studying Iran's Constitution, 3 U. St. Thomas L. J. 521 (2021)
Empathy is vital in this pedagogical process: studying legal texts of a foreign culture from the perspective of that culture, just as the student would wish foreigners do for the texts of that student's culture. That is, as [*610] to how the study of a foreign legal culture can increase empathy, it is the open-minded, open-hearted study itself -- the process itself. But that process requires appropriate substantive curriculum. Challenging substantive curricular options are equally vital to this pedagogy. For American international legal educators and their students, the 1979 Constitution of the Islamic Republic of Iran is one such option. Their ability to understand Iran, and quell prejudice against it, would help combat nationalism that undermines the human dignity of Americans and Iranians alike.
Stephanos Bibas, Symposium: Faith, Law and Love: Peg Brinig's Legacy, 95 Notre Dame L. Rev. 1423 (2020)
Peg Brinig has been a beacon to many around her: to her colleagues (like me), her students, and especially her own kids and grandkids. She lives her faith, giving humbly of herself and touching the lives of many around her. And she exemplifies the scholarly virtues: honesty, humility, persistence, scrupulous care, and principled concern. We will miss her. But she leaves behind an impressive body of research on how to build healthy communities and support families. We will always treasure her friendship and her deep commitment to building stable, permanent families to help raise healthy kids. God bless you, Peg.
Marta M. S. Calçada, Fr. Anderson M. R. Alves, Ph.D.Hormonal Contraceptives and Post-Fertilization Effects, 27 Issues L. & Med. 29 (2022)
Hormonal contraceptives are widely used for birth control and therapeutic purposes. The mechanism of action proposed for these compounds can be found in several scientific journals published to date. The present work consists in a scoping review of a convenience sample of papers regarding the mechanisms of action of each of the three main classes of hormonal contraceptives available. Different parameters and biological consequences associated with their use were also reviewed. Based on these data, we evaluated the probability of embryo loss due to the use of hormonal contraceptives. Evidence indicates the probability of embryo loss due to post-fertilization effects.
Ignacio Sánchez Cámara, Habits of Intelligence. Liberty of Expression and the Criterion of Harm in John Stuart Mill, 84 IUS Gentium 145 (2020)
Isaiah Berlin considered the English thinker John Stuart Mill (1806-1873) to be the founder of modern liberalism. He was the son of James Mill, friend of Jeremy Bentham and the promoter, with the latter, of a group known under the term “philosophical radicalism”, adherent of utilitarian moral philosophy and the principles of political liberalism. This movement pursued the transformation of English political and legal institutions. J. S. Mill's main contributions belong to the fields of ethics, political philosophy, logic end economic theory. Among his works are A System of Logic Ratiocinative and Inductive (1843), Principles of Political Economy (1848), Considerations of Representative Government (1861) and Utilitarianism (1863).1 Autobiography, published posthumously on the year of his death, is worth reading as it provides useful information on the education he received, its value and limitations, and on the nature and evolution of his ideas. He believed that society can only achieve a satisfactory state when the most capable men exercise the highest authority. Civilisation is defined by the presence of two characteristics: the existence of a responsible government and the emergence of scientific knowledge. Freedom is a prerequisite for progress, and equality, when taken to the extreme, collides with justice and may damage freedom and respect for intellectual and moral excellence, a necessary condition for social progress and wellbeing.
Douglass Cassel, The Commission on "Unalienable Rights": A Critique, 11 Notre Dame J. Int'l & Comp. L. 1 (2021)
The Commission on Unalienable Rights was chaired by Harvard Law Professor Mary Ann Glendon. I am privileged to call Professor Glendon a friend and have long admired and learned from her scholarship on the Universal Declaration of Human Rights. 12
She is perhaps better known for declining to accept the University of Notre Dame's Laetare Medal in 2009 after learning that President Obama would be the main commencement speaker and receive an honorary degree. 13
There are legitimate criticisms, as well as points to admire, both in the Unalienable Rights report's idiosyncratic conception of human rights and in the U.S. record on international human rights. However, there can be little dispute that authoritarian regimes are now on the march around the world, and that the government of the rising superpower in China rejects many of the basic concepts of freedom, democracy, and human rights that have animated international human rights law since 1945. [*33] The Commission is then right to recommend that, "in this moment of crisis for the human rights idea, America must pursue that cause with renewed vigor, with pride in what has been accomplished, with humility born of the awareness of her own 'shortcomings and imperfections' and of the complexities of world politics . . . ." 274
Ligia De Jesus Castaldi, Robert Fastiggi, Jane Adolphe, Civil Divorce and the Catholic Lawyer: Answers to Common Moral Questions, 26 Catholic Social Science Review (2021)
This article answers common moral questions on civil divorce and legal practice relevant to faithful Catholics in the legal field, such as whether a Catholic lawyer may be morally involved in civil divorce litigation and, if so, to what extent, in light of basic Catholic moral principles on marriage and civil divorce. It addresses moral dilemmas that Catholic legal practitioners, judges and law students may face in employment situations and divorce-related legal services. In addition, the article addresses civil divorce alternatives like reconciliation, declaration of marriage nullity and legal separation.
Clarke D. Forsythe & Regina Maitlen, Stare Decisis, Settled Precedent, and Roe V. Wade: An Introduction, 34 Regent U. L. Rev. 385 (2022)
Since stare decisis has been consistently identified as a judicial policy by federal and state courts--because settled law has a relationship to the reliability, faithfulness, and effectiveness of the judiciary--applying the rule of law to Roe requires respect for the caselaw on settled law. To the extent that stare decisis et quieta non movere has become part of the rule of law, the Court's failure to settle Roe after 49 years--and the political and cultural damage caused by that failure--should caution the Court to extricate itself from the issue, decentralize the issue, and return the abortion issue to the States clearly and completely, where public policy might better align with public opinion. Over time, as Americans understand the consequences--that immediate change will be limited and recognize the diversity of abortion policy through federalism--it will be good for the Court. Many will wonder why it did not happen sooner. And it will be recognized as the right decision for the Court and our politics.
Nicole Stelle Garnett, Hartman Hotz Lecture: The Comparative Legal Landscape of Educational Pluralism, 73 Ark. L. Rev. 455 (2020)
As part of the fiscal stimulus bill enacted in the midst of the coronavirus pandemic, Congress extended certain billions of dollars in financial benefits to small businesses, including private and faith-based schools. 463Education Secretary Betsy DeVos acted quickly to block state efforts to exclude private schools from receiving more education funding. 464For some private [*529] schools in the United States, these benefits are a matter of life and death. After they were forced to close in March 2020, dozens of private schools announced that they would not reopen in the fall. 465Many more expressed concerns that the financial stress of the closures (and resulting declining enrollments) would force them to follow suit. These concerns have prompted some to urge for the restructuring of K-12 education funding, including a dramatic expansion of private-school-choice. 466As a lifelong school-choice proponent, I agree that reconsidering the exclusion of private and faith-based schools is a matter of great urgency. I fear that we have come to this point too late for many schools that serve American children, including thousands of our most vulnerable students. As a student of comparative education policy, I also believe that parental-choice proponents, including myself, have failed to consider the tradeoffs between funding and autonomy in other countries. The time has come to reconsider that as well.
Scott W. Gaylord, Neutrality Without a Tape Measure: Accommodating Religion After American Legion, 19 Ave Maria L. Rev. 25 (2021)
Neutrality also plays an important role in Establishment Clause cases, but the Court seems in the process of altering its understanding of neutrality in that context as well. In the wake of American Legion, a majority of the Court appears ready to embrace the accommodationist view of neutrality. While not adopting a specific test for religious symbols, practices, and monuments that are "newer" (i.e., not longstanding), a majority indicated in American Legion that neutrality under the Establishment Clause involves only neutrality between and among religions, not between religion and nonreligion. Accordingly, courts need not consider the spatial relationship between the religious and secular components of a display or symbol. The Lemon and endorsement tests have been retired (at least until a different majority holds sway), and the history and tradition approach from Marsh and Town of Greece likely has emerged as the dominant Establishment Clause test. And if Justice Gorsuch is correct, courts need not consult a temporal tape measure either. Instead, courts must ensure only that the government acts neutrally between and among religions, and they should do this by looking at the history and traditions of religion in the public sphere. 360
Luke Isaac Haqq, Reconsidering Wrongful Birth, 95 Notre Dame L. Rev. Online, 177 (2020)
Unexpected but healthy children and children unexpectedly born with anomalies can create real costs for parents, and sometimes these outcomes can legitimately be imputed to the negligent or intentional acts of clinical actors, like failures to detect vertically transmittable diseases, or deliberately withholding information out of a fear that it will motivate a patient to abort. Costs attending congenital disease, however, could still be addressed in a recalibrated terrain, for example, by only permitting recovery under a child's claim of wrongful life, rather than the wrongful birth or wrongful conception claims of parents. By returning to the original policy of the prenatal tort of tending to the needs of injured children, Christian and other pro-life organizations need not challenge the federal reproductive rights directly yet can still make significant strides in recalibrating and redirecting reproductive policy in a better direction.
Charlotte P. Hopson, The Family vs. the State: Protecting the Rights of Parents to Raise and Educate Their Children, 18 Geo. J.L. & Pub. Pol'y 605 (2020)
Societies once almost universally respected the rights of parents to raise and educate their children, but that era is ending. Governments are increasingly mandating how parents should raise their children, a troubling precedent. In order to combat this trend, this Article proposes that the United States should pass a constitutional amendment protecting the rights of parents. Ireland provides a model for such an amendment in Articles 41, 42, and 42A of the Irish Constitution. This Article examines the U.S. and Irish Constitutions and judiciaries in order to show why the U.S. should adopt such an amendment. The U.S. and Ireland have similar constitutional histories and judicial approaches, making Ireland uniquely qualified to serve as a constitutional example to the U.S. In recent years, the U.S. has witnessed a number of recent battles that depict the need for an amendment such as this. That said, this Article does not suggest that the route to a constitutional amendment is easy. Instead, it recognizes the difficulty of passing such an amendment and explains why the attempt is nevertheless important.
Paul M. Matenaer, Comment: But Instead Expose Them: Public Access to Criminal Trails in U.S. Law and Canon Law , 21 Wis. L. Rev. 891 (2021)
Public access to criminal trials is an indispensable attribute of the Anglo-American legal system. The "rule of publicity" has been the rule in England from time immemorial and was a fundamental attribute of the judicial systems of the early American colonies. The Supreme Court has concluded that "a presumption of openness inheres in the very nature of a criminal trial under our system of government," and the First and Sixth Amendments safeguard the public nature of criminal trials. Yet, as essential as publicity is to the American legal system, secrecy is to the Catholic Church's legal system: canon law. Amidst calls for greater transparency and accountability in the Church, recent developments in canon law have only taken small steps to lift the pall of secrecy. Meanwhile, U.S. Catholics have discovered many reasons to distrust their leaders, stemming from sexual and financial misconduct and cover-up. While some canonical scholars have recognized the benefit of employing secular models of transparency, none has endeavored to provide a method of incorporation or to suggest concrete changes. This Comment begins that conversation by comparing public access in criminal trials under U.S. law and canon law and by examining whether canon law can successfully incorporate any elements of American law. Due to fundamental differences in the two legal systems, many elements cannot be incorporated, but the core values promoted by the American legal system's public access doctrine are values inherent in good governance in general. This Comment applies these values to criminal trials in canon law and provides three concrete proposals that uphold the fundamental values of good governance and accomplish the express purposes of the Church's penal system. Rather than hide its criminal trials in secret, the Church should instead expose them.
Stephen L. Mikochik, Pope Francis and Civil Unions, 20 Ave Maria L. Rev. 96 (2022)
Admittedly, St. Thomas concludes the Natural Law and Civil Law are not co-extensive, so that conduct which the former considered vicious the latter was not necessarily required to prohibit.36 Civil law, however, cannot sanction what the Eternal Law (and thus the Natural Law) condemned since it would be unjust and thus no longer a law.37 If “sanctioning” vice is the same as formally cooperating with it, it would appear again that laws recognizing civil unions simply are not legitimate.
Of course, an offhand statement during an interview does not constitute official Church teaching, even if made by the Pope himself and especially if not intended to be made public. Yet, the Pontiff's words are an invitation to rethink the Church's position on civil unions. Even if the same conclusion is ultimately reached, the process enables us better to understand the grounds for that teaching and better to distinguish just from unjust discrimination. In words Pope Francis did assent to have published, “[t]he Christian community and its Pastors are called to welcome with respect and sensitivity persons with homosexual inclinations, and will know how to find the most appropriate ways, consistent with Church teaching, to proclaim to them the Gospel in its fullness.”38
Holly M. Randall, From Peyote to Parenthood: Why Employment Division v. Smith Must (and Might) Go, 45 Okla. City U. L. Rev. 66 (2020)
Employment Division v. Smith has ravaged First Amendment jurisprudence and the right to free exercise of religion for thirty years. Its holding is inconsistent with originalism, causes confusion among circuit courts, and creates a roadmap for state-sponsored religious hostility under the guise of neutrality. However, this upcoming term presents an opportunity for change and true restoration of American freedom. I believe that a majority of the Justices recognize the shortcomings of Smith and will use Fulton v. City of Philadelphia to restore the balance between the Establishment Clause and Free Exercise Clause by overturning Smith. For advocates of religious liberty, this day will be a long time coming, yet welcomed with open arms. A new era of religious freedom will flourish once Smith is overruled.
Charles J. Russo and William E. Thro, The Demise of the Blaine Amendment and a Triumph for Religious Freedom and School Choice: Espinoza V. Montana Department of Revenue, 46 Dayton L. Rev. 131 (2021)
Espinoza has the potential to play a major role in helping to end what former President George W. Bush described as the "soft bigotry of low expectations." 245This "soft bigotry" condemns many children, especially those from economically deprived backgrounds, to attending low-performing schools from which they have little, if any, chance of succeeding academically and beyond, denying them, their parents, and families opportunities to participate in the seemingly elusive "American Dream."
Espinoza thus represents a significant step toward achieving the as of yet unfulfilled promise of Brown v. Board of Education's equal educational opportunities for all of America's children and their families, regardless of their races, creeds, ethnicities, genders, socioeconomic or immigration statuses, or (dis)abilities. 246 Brown's goal of equal educational opportunities for all children and their families is one well worth pursuing, perhaps now more than ever before in the nation's history.
Tara Sander Lee, Ph.D., Maria B. Feeney, Ph.D., Kathleen M. Schmainda, Ph.D., James L. Sherley, M.D., Ph.D., and David A. Prentice, Ph.D., Human Fetal Tissue from Elective Abortions in Research and Medicine: Science, Ethics, and the Law, 35 Issues L. & Med. 3 (2020)
Since the U.S. Supreme Court issued its landmark decision in 1973 to legalize abortion, over 60 million preborn have been killed by elective abortion. While alive in the womb, these preborn are abandoned and not protected under current law. But once aborted, their body parts are a highly esteemed and prized commodity amongst certain members of the scientific community. Moral discourse is disregarded for the sake of science. The public have been lulled and lured into believing that this practice must continue in order to understand and develop cures for some of the most debilitating diseases of our day. But they are mistaken. This practice is not necessary, especially in light of numerous noncontroversial alternatives. Here, we expose and consider the false and misleading claims regarding human fetal tissue (HFT) in research from scientific, legal, and ethical points of view. We endeavor deeply to understand the depth of the injustice in this practice and what forces promote and maintain it; and by revealing and understanding these forces, we set forth how these inhumane practices can be ended. An accurate portrayal of the history of HFT use in research is provided, along with a close examination of the current state of this practice under existing laws. The serious societal implications are also discussed, which will worsen beyond comprehension if these practices are allowed to continue. The timeliness of this information cannot be overstated, and a thorough understanding is paramount for anyone who desires to know the facts about HFT in research and medicine and its detrimental impact for humanity.
James Grant Semonin, Note: "For the Forgiveness of Sins": A Comparative Constitutional Analysis and Defense of the Clergy-Penitent Privilege in the United States and Australia, 47 J.Legis. 156 (2020)
What is striking me about [efforts to curb the clergy-penitent privilege is that legislators are] now going beyond public institutions and reaching very deeply into the interior life of the Church - how we manage our sacramental life - and that kind of aggression, that sort of violation of religious liberty ... should concern not just Catholics but anyone who is committed to ... political values. 1 While this Note argues against subordinating the privilege to mandatory reporter statutes, there is clearly a manifest interest in preventing and prosecuting child abuse. It is evident that the Church has failed in many regards, and institutional [*192] changes from the inside out are necessary to ensure that clergy are adequately trained to counsel penitents regarding the means through which the ends of justice and mercy may be best served. With properly drafted legislation and thorough institutional reform, legislatures and churches alike can work in tandem to address child abuse and protect legitimate religious practice.
Leslie H. Southwick, Federal Courts, Practice & Procedure: A Survivor's Perspective: Federal Judicial Selections from George Bush to Donald Trump, 95 Notre Dame L. Rev. 1847 (2020)
This laborious trek through the nomination and confirmation terrain, peaks and valleys, cool, comforting lakes, and, at times, some hot desert, has been personal at times. The review has caused me to relive some of my own travails and again to sympathize for the even worse travails of friends and acquaintances. Nonetheless, as I wrote in the conclusion to my book, The Nominee, and as I expect many nominees feel, we learn from painful experiences. My sense was that I was refined in the fire of the controversies that engulfed me. I had the benefit of success to avoid anger or bitterness. All who are involved as target, attacker, defender, or impartial observer might usefully contemplate that what we see depends on where we stand, that fairness is a subjective concept that is affected by all in our past that has got us to our present. The truth of Aleksandr Solzhenitsyn's words in The Gulag Archipelago are to me a comfort and a goad, that "the line separating good and evil passes not through states, ... nor between political parties either - but right through every human heart - and through all human hearts." 553That being true, at least minor humility by all involved in the confirmation contests would be justified.
Hannah Teller, How To Heal: Evaluating the Remidies for New Jersey Clergy Sex Abuse Victims, 45 Seton Hall Legis. J. 525 (2021)
Cardinal Tobin of Newark, in a videotaped message, told Newark Catholics that the church "can never return "to business as usual.'" 198 [*551] Both the survivors of clergy abuse and the Catholic Church will never be able to return to the status quo following many years of clergy sex abuse. Filing a lawsuit or submitting a claim through the IVCP cannot remove the pain and suffering caused by childhood sexual abuse. This comment does not take the position that the remedies available to survivors will heal the individuals, families, and communities impacted by this institutional failure. The recent legal developments in New Jersey have shown how far the survivors and institution have come over the past several decades since the abuse was uncovered. At best, the opportunity for survivors to decide how they choose to proceed in seeking justice creates a survivor-oriented approach. Both remedies have strengths and flaws, but the mere existence of both separate reforms allows the victim to decide how they will hold the perpetrators and institution accountable.
John Witte, Jr. and Andrea Pin, Faith in Strasbourg and Luxembourg? The Fresh Rise of Religious Freedom Litigation in the Pan-European Courts, 70 Emory L.J. 587 (2021)
When the Grand Chamber of the ECtHR in the 2011 Lautsi case addressed the issue of whether crucifixes were permitted in Italian public school classrooms, 598Professor Joseph Weiler, an Orthodox Jew wearing his yarmulke in the courtroom, defended the continued display of the crucifix despite the objections of atheist parents. 599Among other things, Weiler warned the ECtHR not to "Americanize" Europe, by superimposing a "neutrality" model of religious freedom and church-state relations, akin to what was being enforced in American courts at the time. 600The European idea of neutrality first surfaced in ECtHR cases, but this idea has influenced the CJEU as well. Time will tell if the CJEU adopts a stronger version of religious neutrality. Ironically, the United States Supreme Court has backed away from the Smith neutrality test in its most recent cases, and it might soon abandon this test in favor of a more robust protection of the free exercise of religion as had been the law before Smith. 601If [*661] that proves true, perhaps the "Americanization" of Europe might be just what is needed after all, at least in protecting the free exercise of religion.
James J. Zumpano, Jr., Abortion in the United States: A Cry for Human Dignity, 15 Intercultural Hum. Rts. L. Rev. 285 (2020)
In recent years, the debate surrounding abortion has taken flight. It has been one of the most discussed and most controversial topics in the history of the United States as well as around the world. This article undertakes a critical analysis of whether mothers in the United States should maintain their exclusive privacy right to choose to terminate a pregnancy or whether unborn babies also have substantive due process rights, in particular a right to life. The gestational process of human development as well as pregnancy from the mother's perspective shall first be addressed. The various types of abortion pro cedures, most reported reasons for attaining an abortion, as well as a mother's experiences post abortion and its interaction with the institution of family will also be explored. Conflicting claims from the mother, the unborn child, and the father will be examined as well as the varying doctrines of religious institutions, ideas of philosophy, and the viewpoints of activist organizations from both the pro-life and the pro-choice movements. The legal responses in form of the treatment of abortion in various societies and the United States' history of abortion legislation as well as the jurisprudence of the Supreme Court will also be discussed. Lastly, current and changing conditioning factors in government and politics as well as appraisals of intervention will be explored via critical legal analysis and a solution proposed with a view toward contributing to an order of human dignity, using the framework of the New Haven School of Jurisprudence.
