Law Commons^™

Viewing Privilege Through A Prism: Attorney-Client Privilege In Light Of Bulk Data Collection, Paul H. Beach

Notre Dame Law Review

This Note will argue that the attorney-client privilege is justified not only by the popular instrumentalist rationales, but also by noninstrumentalist thinking. It will further argue that Federal Rule of Evidence 502 gives federal courts the tools to protect the attorney-client privilege in light of bulk data collection. Even where courts do not find that traditional modes of communication constitute reasonable steps to protect a confidential communication, general considerations of fairness—as noted in Rule 502’s committee notes—should encourage courts to uphold attorney-client privilege in future situations of bulk data collection disclosures. Part I will discuss the establishment, development, and operations …

Catalyst, Obstacle, Or Something In Between? Dealing With The Law In Building Ethical Corporate Culture, Countess Alexandra, Timothy L. Fort

Notre Dame Journal of Law, Ethics & Public Policy

No abstract provided.

A Practical Guide To The Use Of The Commissioned Public Report As An Effective Crisis-Management Tool, F. Joseph Warin, Oleh Vretsona, Lora E. Macdonald

Notre Dame Journal of Law, Ethics & Public Policy

When terrorists attack an energy installation, disaster strikes a nuclear power plant, or a hurricane tears through wide swathes of a city, immediate concern is for the persons affected by the disaster. Close on the heels of this concern is often criticism of how the organization responsible for those persons’ safety has handled the catastrophic event, and an inept response—or one perceived as inept—can spell the organization’s demise. Institutional cracks are laid bare for the world to see, the public narrative turns it from victim to villain, reputational damage mounts, and a wave of public scrutiny and litigation looms. If …

Redressing Lgbt Employment Discrimination Via Executive Order, Alex Reed

Notre Dame Journal of Law, Ethics & Public Policy

The United States workforce includes an estimated 5.4 million lesbian, gay, bisexual, and transgender (“LGBT”) persons. Because no federal statute explicitly prohibits employment discrimination on the basis of sexual orientation or gender identity, employers may discriminate against LGBT workers with impunity, and numerous studies have confirmed that LGBT-related employment discrimination is rampant. Lesbian, gay, and bisexual (“LGB”) individuals experience sexual orientation-based employment discrimination at staggering rates: 8% to 17% have been fired or denied employment, 7% to 41% have been verbally or physically harassed by coworkers, and 10% to 19% have been unfairly compensated in terms of pay or benefits. …

Compliance Officers: More Jobs, More Responsibility, More Liability, Susan Lorde Martin

Notre Dame Journal of Law, Ethics & Public Policy

In response to a great deal of new rule making by federal agencies in the last few years, corporate compliance departments are becoming larger and more involved in businesses in an effort to eliminate regulatory violations and to reduce fines in the event of an offense. At the same time, chief compliance officers who head these departments are becoming increasingly concerned that they will be held liable for the actions of others at their companies merely because they are in charge of their companies’ compliance programs. This article looks at examples of laws that give rise to compliance mandates and …

The Responsible Corporation: Its Historical Roots And Continuing Promise, Larry D. Thompson

Notre Dame Journal of Law, Ethics & Public Policy

During corporate America’s Gilded Age, satirist Ambrose Bierce defined a corporation as “[a]n ingenious device for obtaining individual profit without individual responsibility.” One need not accept that definition to recognize that it captures a debate about corporations that has preoccupied America for more than a century: Does a corporation have any responsibility to society? Or, is its only obligation to maximize profits for its shareholders? Nobel Laureate Milton Friedman famously stated that a corporation has “one and only one social responsibility”— “to increase its profits . . . . ” “Few trends,” he wrote, “could so thoroughly undermine the very …

Chaidez V. United States - You Can't Go Home Again, Aram A. Gavoor, Justin M. Orlosky

Notre Dame Journal of Law, Ethics & Public Policy

This article examines a 2013 Supreme Court decision, Chaidez v. United States, in which the Court declined to apply retroactively another recent decision, Padilla v. Kentucky. To many observers, Chaidez appears to be a discrete departure from previous Sixth Amendment right to counsel jurisprudence. On a personal level, noncitizens who pled guilty to a crime without being apprised of the plea’s removal risks are now unable to seek redress under Padilla and return to their homes in the United States. This article examines relevant Sixth Amendment and retroactivity jurisprudence and proposes an explanation for the Court’s apparent aboutface.

Executive Power To Provide Material And Financial Support To Foreign Governments And Ngos Linked To Terrorist Groups, Alexa E. Craig

Notre Dame Journal of Law, Ethics & Public Policy

Since the Iran-Contra affair in the 1980s, the President’s power in foreign affairs, while questioned, has been constrained very little. Constitutional questions about executive power in the international arena have largely transformed into statutory ones. While statutes are more adaptable to changing circumstances than the Constitution, the statutory questions continue to address the issues generated by the Framers. Uncertainty regarding the scope of executive power has another cause: courts often dismiss cases about the constitutionality of the President’s actions for standing reasons. For instance, one of the latest cases that could have precipitated a serious discussion of the President’s foreign …

Behavioral Ethics: Can It Help Lawyers (And Others) Be Their Best Selves?, Robert A. Prentice

Notre Dame Journal of Law, Ethics & Public Policy

Using the principles of behavioral psychology and related fields, marketers have changed human behavior in order to increase sales. Governments have used these same principles to change human behavior in order to advance policy goals, such as increasing savings behavior or organ donations. This article surveys a significant portion of the new learning in behavioral ethics in support of the claim that by teaching behavioral ethics we have a realistic chance to improve the ethicality of human decisionmaking and actions.

The Endless Bummer: California's Latest Attempt To Protect Children Online Is Far Out(Side) Effective, Stephen J. Astringer

Notre Dame Journal of Law, Ethics & Public Policy

More so than any preceding medium, the Internet has provided users the ability to communicate quickly and without significant restrictions. Today’s children face the challenge of seemingly mundane activities, part of everyday life, that have the potential to ruin futures. A single status update on Facebook, post on Twitter, or video on YouTube can have lasting ramifications. Minors are not the only population to later experience post regret, but unlike politicians, athletes, or any other adults, youthful indiscretion will often lead to less prudent and thoughtful decision-making. Before nearly every person had an Internet-capable camera in their pocket at all …

Legal Myths Of Ebola Preparedness And Response, James G. Hodge Jr.

Notre Dame Journal of Law, Ethics & Public Policy

In March 2014, Ebola viral disease (“EVD”) emerged from several

West African countries as a substantial threat to global health.

Through a series of core legal powers pursuant to its declaration of a

public health emergency of international concern (“PHEIC”) on

August 8, 2014, the World Health Organization (“WHO”) averted a

global health disaster by requiring member countries to engage in mul- tiple public health interventions. These efficacious WHO-mandated

measures included implementation of border closures to limit the

spread of EVD within and outside of countries like Guinea, Liberia,

Senegal, and Sierra Leone. Industrialized nations, including the

United States, responded …

The Need For Conditions Limiting The Use Of Legislative History In Statutory Interpretation: Lessons From The British Courts, Sylvia Costelloe

Notre Dame Journal of Law, Ethics & Public Policy

Statutory interpretation is of crucial importance for both lawyers and judges. A notably fertile source of debate is the use of legislative history for purposes of statutory interpretation, which gained particular momentum in the past century. Proponents of the use of legislative history in statutory interpretation argue that it is a valuable tool for interpreting ambiguous statutes. On the other hand, opponents such as Justice Scalia have argued that the only law that should govern is that which has been passed by a majority of the House and the Senate. The debate among American judges and scholars has largely centered …

Regulating Life, Disease, And Death: The Legal, Ethical And Moral Implications Of Science, Medicine, And Technology, Jae Yeon Kim

Notre Dame Journal of Law, Ethics & Public Policy

On March 19, 2015, the Notre Dame Journal of Law, Ethics & Public Policy hosted a symposium to address the changing landscape of medicine, science, and technology. The Journal made this selection because advancements in these fields pose unique challenges to society’s understanding of the law’s role in regulating and shaping public discourse on life, disease, and death.

Placing Al Gore On The Board: Accounting For Environmental Risk In The Corporate Governance Model, Blair M. Warner

Notre Dame Journal of Law, Ethics & Public Policy

Head to Coca-Cola’s website today and you will find something unexpected—a position statement on climate change: Across the Coca-Cola system, we recognize that climate change may have long-term direct and indirect implications for our business and supply chain. As a responsible multinational company, we have a role to play in ensuring we use the best possible mix of energy sources, improve the energy efficiency of our manufacturing processes and reduce the potential climate impact of the products we sell. The company was not always this focused on climate change and sustainability initiatives. Coca-Cola’s CEO, Muhtar Kent, explained to Forbes that …

Applying Lessons From The Opioid Abuse Epidemic To Protect Consumers From Gray Market Biologics, Michael C. Barnes, Stacey L. Worthy

Notre Dame Journal of Law, Ethics & Public Policy

lmost 17,000 people die per year of overdoses involving prescription opioids, controlled substances prescribed to treat pain and addiction. As such, the Centers for Disease Control and Prevention (“CDC”) has deemed prescription drug abuse a national epidemic. In addition to opioids, several other classes of prescription medications have become prone to abuse, including stimulants and benzodiazepines. As many as twenty percent of college students have used stimulants at some point in their studies for nonmedical use, and the number of admissions to substance abuse treatment programs for benzodiazepine use nearly tripled between 1998 and 2008. And in 2011, benzodiazepines caused …

The People's Nih? Ethical And Legal Concerns In Crowdfunded Biomedical Research, Joshua E. Perry

Notre Dame Journal of Law, Ethics & Public Policy

Over the last decade, online crowdfunding has become a mainstream source of capital formation for a range of artistic and entrepreneurial endeavors. Low-barrier websites such as Kickstarter and IndieGoGo that fund production of a movie or recording of an album, in addition to charity conduits such as Kiva that facilitate the dissemination of microloans in the developing world, are trusted fundraising mechanisms that offer alternatives to traditional financing through banks and venture capitalists. Moreover, these models predicated on the solicitation of relatively modest amounts of money create a more egalitarian investment environment wherein donors can join the effort—and often receive …

Risk, Uncertainty, And "Super-Risk", José Luis Bermúdez, Michael S. Pardo

Notre Dame Journal of Law, Ethics & Public Policy

Risk is a pervasive feature of law and public policy. Decision-making in these domains often takes place in the absence of certainty and with awareness that errors may be made and predictions may fail. Within law—as within the social and physical sciences, medicine, economics, finance, and countless other domains—a primary focus of practical and scholarly inquiries is the extent to which risks can be measured and managed. In each of these domains, risk analysis typically employs the basic tools of decision theory (probability and utility) to measure the likelihood as well as the costs and benefits associated with possible outcomes. …

Religion And Public Reason In The Politics Of Biotechnology, J. Benjamin Hurlbut

Notre Dame Journal of Law, Ethics & Public Policy

Questions about the relevance of religious views to public policy have been central in debates over the governance of biotechnology since the 1960s. This article offers an empirical analysis of moments of deliberative politics surrounding human embryo research, primarily within public bioethics bodies. I examine how these bodies have used the idea of public reason as developed in deliberative democratic theory to differentiate between secular and religious reasons. I argue that scientific authority is made to play a powerful, but largely unacknowledged role in constructing these categories by contributing to definitions of the range of “reasonable” pluralism. I show that …

No Longer Left To Their Own Devices: Evaluating The Non-Traditional Medical Device Excise Tax, Kensington A. Wolgamott

Notre Dame Journal of Law, Ethics & Public Policy

When the United States federal government entered a shutdown in the fall of 2013, the budget crisis took center stage in the political debate. The Affordable Care Act (“ACA”) was one of the most contentious issues on the agenda, and among the bargaining chips in the discussion was the disputed issue of the medical device excise tax (“MDET”). The excise tax, imposed upon the sale of certain medical devices, has raised quite a bit of bipartisan opposition and has been up for repeal or reform over a dozen times to date. The increasing attention the tax has received since its …

Three's Company: A Constitutional Analysis Of Prohibiting Access To Three-Parent In Vitro Fertilization, J. Ravindra Fernando

Notre Dame Journal of Law, Ethics & Public Policy

The 1997 science-fiction film Gattaca tells the story of Vincent Freeman, a “God-child,” “de-gene-erate,” “faith birth.” The film unfolds in a not-too-distant future where genetic modification is commonplace and children’s characteristics and predispositions are routinely decided before birth. A rarity in this world, Vincent is conceived without any genetic modification and, consequently, is born with myopia and a congenital heart defect. His inferior genetic profile has banished him to a new subclass of society, so the only way to achieve his lifelong dream of becoming an astronaut is by impersonating a “valid”—a person with a healthy, genetically-engineered DNA.

A Prescription For The Future: Reverse-Payment Settlements In The Wake Of Ftc V. Actavis Pharmaceuticals, Audra J. Passinault

Notre Dame Journal of Law, Ethics & Public Policy

The pharmaceutical industry is a large and important part of the overall health care system in the United States. Drug innovation and improvement lead to safer and more effective pharmaceuticals able to treat a variety of diseases and ailments. But the quest by pharmaceutical companies to develop the next successful drug is an expensive venture: pharmaceutical companies spend more on research and development, relative to sales revenue, than almost any other industry in the United States. However, this innovation and investment is rewarded when the drug is granted a patent by the United States government, giving the developing company a …

Criminalization Of Juror Misconduct Arising From Social Media Use, Matthew Aglialoro

Notre Dame Journal of Law, Ethics & Public Policy

This Essay analyzes criminalization as an alternative solution to juror misconduct arising from social media use, where jury instructions fail to prevent such misconduct. Despite the lack of scholarship on the subject, criminalization is far from a radical solution—California enacted legislation in 2011 that sought to criminalize jurors’ improper use of social media. By criminalizing juror misconduct, states can deter misconduct from occurring while also instilling the importance of the jury institution in the public. At the same time, it is important to be cognizant of objections that judges and jurors may raise. This Essay proceeds in three parts. Part …