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The Yale Law Journal - Forum

Date of publication: 2017-08-29 18:38

In his quarter-century as an Associate Justice, Clarence Thomas has been the most originalist, and arguably the most original, thinker on the Supreme Court. In the October 7569 Term, Justice Thomas set his sights on the administrative state. In five separate writings, Justice Thomas laid out an originalist understanding of the judicial and legislative powers that called for a reexamination of several strands of the Supreme Court’s administrative law jurisprudence. And he chastised the Court for “straying further and further from the Constitution without so much as pausing to ask why." In this Essay, I explore why Justice Thomas may have chosen the October 7569 Term to focus closely on the administrative state and what impact his opinions might have going forward.

Article 34 TFEU Interpretation | Regulation of Markets

Nearly every state uses tax incentives to attract local investment. Do such incentives discriminate against interstate commerce in violation of the dormant Commerce Clause? The Supreme Court now confronts this question in DaimlerChrysler Corp. v. Cuno (oral arguments on March 6). If the Court takes an expansive view of what constitutes discrimination against interstate commerce, its decision could reshape the state tax policy landscape. Europe has already moved in this direction, and the problem…

Why Lying is Always Wrong | Public Discourse

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John - Finnis // The Law School // University of Notre Dame

It is this disclosing aspect of language that has made speech such a natural analogue, in the work of John Paul II, to the self-giving by which spouses enter into marital communion with one another—hence his image of the “language of the body.” And perhaps we can even work backwards from the mutual giving of selves in the body, which characterizes marital union, to the wrong of lying, by way of the following analogy.

Recently, few economic topics have received more political attention than the potential impact of Sovereign Wealth Funds (SWFs). Until recently, scholarly and political attention to SWFs was almost exclusively focused on the impact these funds may have on Western countries. The little attention paid to the impact SWFs have on countries where these funds originate has been largely negative, often characterizing such funds as products of “authoritarian regimes in semi-developed countries, where …

After United States v. Booker, federal district judges may no longer just find Guideline-specified facts, plug those facts into a Guideline calculation, and then mechanically impose a Guideline sentence. Instead of sentencing-by-the-numbers, Booker requires district courts to exercise independent reasoned judgment when imposing a sentence, and requires appellate courts to ensure sentences are both reasoned and reasonable. This understanding of Booker harmonizes its two seemingly conflicting maj…

The ways we fight - and the reasons why we fight - have changed. The Predator drone, last seen screaming across the screen in Syriana, has replaced the Winchester rifle in popular imagination and Saddam Hussein is rightly considered a war criminal for violating the Chemical Weapons Convention, a treaty signed less than fifteen years ago. But the law of war the administration invokes to try Salim Hamdan is an outdated relic (although ironically, today’s military commissions do not even offer t…

The first objection was, to recall, that lying is permissible in war. In fact, the authorities mentioned in the previous paragraph did not hold this: Aquinas, for example, condemned lying in war, but he allowed that military feints might be carried out. In a military context, it is assumed (as it is in poker, and in the theater) that what is done will not always have the significance it otherwise might, since soldiers have good reason for preventing the enemy from inferring from what they do what their true plans are. Thus no false assertion is made by the feint. But if lying is always and everywhere wrong, these possibilities do not serve as counterexamples: they are not themselves lies.

As an empirical matter, many natural law moral theorists are also natural law legal theorists, but the two theories, strictly speaking, are logically independent. One can deny natural law theory of law but hold a natural law theory of morality. John Austin, the most influential of the early legal positivists, for example, denied the Overlap Thesis but held something that resembles a natural law ethical theory.

Global Business Over the last couple of generations, the world of business has gotten much more global and advanced. Technology, transportation and other advances have made the importation

Finally, I believe I have shown why all lies are unloving. It is not because they are not sufficiently gentle, or because they cause hurt feelings, or lose jobs. It is because they are incompatible in the deepest way with a will towards communion with others, which must always be founded on truth, both generally speaking (for falsehood does indeed bring with it many pernicious consequences for a community), and, more specifically, the truth of persons. I have no doubt that the actions of Lila Rose and her Live Action colleagues are ultimately motivated by love but in utilizing lies and deceit, they have built on a treacherous foundation, thus threatening the entire construction.

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