Law Commons^™

Letter From The Editor, Brad A. Rocheville

Notre Dame Journal of International & Comparative Law

No abstract provided.

International "Constitutions" And Comparative Constitutional Law, Michael Da Silva

Notre Dame Journal of International & Comparative Law

Many legal scholars and jurists see a particular document or a collection of documents as a means of constitutionalizing international law. The Charter of the United Nations is a prime example. Based on this, comparisons are made between international law and domestic constitutional orders, and these comparisons are sometimes used to decide cases. However, there is reason to question whether the international legal order has enough features of domestic constitutional orders to justify judicial comparison between the international legal order and domestic constitutional orders. The ongoing constitutionalization process is unlikely to produce an international legal order with sufficiently similar features ...

A Second Chance On Earth: Understanding The Selection Process Of The Judges Of The Colombian Special Jurisdiction For Peace, Santiago Pardo Rodríguez

Notre Dame Journal of International & Comparative Law

For over fifty years, Colombia has faced a bloody and cruel civil conflict. Some of the most conservative studies have estimated that the total death toll of the war may be 220,000. The weight of this number heavily lies on the civilian population. It is estimated that around 81% of those killed in the conflict are non-combatant civilians. This represents, according to the data collected by the government’s Center for National Memory, around 180,000 civilian victims. In other words, as a civilian, the probability of being a victim in the Colombian conflict was nine times higher than ...

Challenges To, And Manifesto For, Fact-Finding In A Time Of Disinformation, Agnés Callamard

Notre Dame Journal of International & Comparative Law

Liberal and democratic values are in jeopardy, as is the rules-based international system and the norms it embodies, both being subject to multiple attacks that, once taboo, now, quite to the contrary, are both claimed and carried out with pride. This Article assesses the current human rights environment from the perspective of a United Nations factfinder. The impact of technological advancement on the human rights framework and the process of evidence-gathering is discussed, particularly regarding the spread of misinformation. The Article concludes with a manifesto for fact-finding as a pathway to knowledge and justice.

The Rise Of Hybrid Warfare, Waseem Ahmad Qureshi

Notre Dame Journal of International & Comparative Law

In the twenty-first century, wars are not declared or waged conventionally; instead, conflicts are instigated by clandestine agents using cyber tools, information operations, NGOs, nonstate actors, economic tools, propaganda, ambiguity, terrorism, and insurgency or rebel movements. In hybrid warfare, the lines between peacetime and wartime and between combatants and civilians are blurred. Further, systemic aggression is imposed on a targeted state using gray zones, nonlinear warfare, unrestricted warfare, unconventional warfare, and color revolutions to avoid attribution and possible retribution for the aggression. Hybrid warfare employs a wide array of power tools, ranging from political, economic, military, and civil to informational ...

Legal System Network Effects And Global Legal Development, David C. Donald

Notre Dame Journal of International & Comparative Law

Law originates in local environments, yet can be transmitted globally or over time to new contexts and foreign or future users. At its origin, law arises in response to social needs, but once formalized it takes on a semantic life of its own in a network of users. A rule created in response to a random New York plaintiff could—with sufficient popularity—end up as the standard norm applied globally, regardless of its underlying suitability for specific local needs.

To better understand the consequence of these legal system network effects on global legal development, this Article applies Klausner’s ...

Modernity And The Law: A Late Twentieth Century View, Robert P. Burns

Notre Dame Journal of International & Comparative Law

This Article explores Roberto Unger’s understanding of the specific significance that modernity has for law. It provides an account of the distinctions among customary law, bureaucratic law, the modern liberal rule of law ideal, and the unraveling of the rule of law in postliberal societies. It compares his views with those of other major theorists of modernity and with legal theorists. Finally, it discusses his speculations about then future developments and the relationship between central institutional and philosophical issues.

Masthead

Notre Dame Journal of International & Comparative Law

No abstract provided.

The Needle And The Damage Done: Mitchell V. Wisconsin'S Sweeping Rule For Warrantless Blood Draws On Unconscious Dui Suspects, Dyllan Taxman

Notre Dame Law Review Reflection

In a normal year, the annual death toll from drunk driving accidents in the United States will roughly equal the total number of victims of the September 11th terrorist attacks and service members killed in the War on Terror combined. And while every state has enacted increasingly progressive laws to prevent and punish driving under the influence (DUI), episodes of drunk driving remain consistent year to year and less than one percent of self-reported drunk drivers are arrested. Drunken and drugged driving is, both in lay terms and legally speaking, a compelling public issue. But the Fourth Amendment of the ...

Faith, Law, And Love: Peg Brinig's Legacy, Stephanos Bibas

Notre Dame Law Review

The central question in Peg Brinig’s work is how the law can help intimate associations to raise healthy kids. She pursues this theme through a variety of inquiries, ranging from parochial schools in big-city neighborhoods to covenant-marriage laws in Louisiana. Her answers depend on context, varying with how close each social actor or institution is to the process of raising children. But nearly all her recommendations seek to foster permanent, loving, involved social environments.

Following Brinig’s lead, I’ll celebrate her work by highlighting some of the answers she offers in three different social contexts. In Part I ...

The Invisible Prison: Pathways And Prevention, Margaret F. Brinig, Marsha Garrison

Notre Dame Law Review

In this Article, we propose a new strategy for curbing crime and delinquency and demonstrate the inadequacy of current reform efforts. Our analysis relies on our own, original research involving a large, multigenerational sample of unmarried fathers from a Rust Belt region of the United States, as well as the conclusions of earlier researchers.

Our own research data are unusual in that they are holistic and multigenerational: the court-based record system we utilized for data collection provided detailed information on child maltreatment, juvenile status and delinquency charges, child support, parenting time, orders of protection, and residential mobility for focal children ...

The Place Of Empirical Studies, F.H. Buckley

Notre Dame Law Review

It was chance that brought Peg Brinig to George Mason University School of Law, and curiosity that took her to a law-and-economics and then to empirical research. She realized that only the curious would be able to keep up to new things, and that law teaching, not journalism, was the profession of the curious.

At the time, it took not only curiosity, but also a certain measure of courage to embark on law and economics. Traditional legal scholars correctly surmised that it would shake up the discipline, and that is never a pleasant experience. Conservatives who were fond of saying ...

In Defense Of Empiricism In Family Law, Elizabeth S. Scott

Notre Dame Law Review

It is fitting to include an essay defending the application of empirical research to family law and policy in a symposium honoring the scholarly career of Peg Brinig, who is probably the leading empiricist working in family law. While such a defense might seem unnecessary, given the expanding role of behavioral, social, and biological research in shaping the regulation of children and families, prominent scholars recently have raised concerns about the trend toward reliance on empirical science in this field. A part of the criticism is directed at the quality of the science itself and at the lack of sophistication ...

The Institutional Economics Of Marriage: A Reinterpretation Of Margaret Brinig's Contribution To Family Law, Douglas W. Allen

Notre Dame Law Review

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 ...

Does Docket Size Matter? Revisiting Empirical Accounts Of The Supreme Court's Incredibly Shrinking Docket, Michael Heise, Martin T. Wells, Dawn M. Chutkow

Notre Dame Law Review

Drawing on data from every Supreme Court Term between 1940 and 2017, this Article revisits, updates, and expands prior empirical work by Ryan Owens and David Simon (2012) finding that ideological, contextual, and institutional factors contributed to the Court’s declining docket. This Article advances Owens and Simon’s work in three ways: broadening the scope of the study by including nine additional Court Terms (through 2017), adding alternative ideological and nonideological variables into the model, and considering alternative model specifications. What emerges from this update and expansion, however, is less clarity and more granularity and complexity. While Owens and ...

A Consumer Guide To Empirical Family Law, June Carbone

Notre Dame Law Review

This Article will consider the framework for empirical work on family law, arguing that the failure to ask more sophisticated questions at the beginning of the research has limited its effectiveness. In this sense, Professor Peg Brinig’s work stands out for the creativity of the questions she has asked, her exploration of underutilized databases, and her work’s potential to serve as a foundation for a new paradigm for the integration of empirical work into family law theory.

This Article will discuss the way that theory—and the creation of discourses associated with it—informs empirical research. First, it ...

Property Rights In Children, Barry E. Adler, Alexis A. Alvarez

Notre Dame Law Review

In 1978, Dr. Elisabeth Landes and then-Professor, later-Judge Richard Posner, published The Economics of the Baby Shortage. The article openly discussed how economic analysis can address the allocation of babies available for adoption. The ideas expressed in the article were widely denounced as an inhumane commodification of children, something tolerable only in the twisted minds of academic authors. Despite the backlash, an odd thing happened in the more than four decades since Landes and Posner wrote on this topic: their ideas began to take hold. Today, almost all states in the United States permit, in some form, the contractual assignment ...

Understanding Violent-Crime Recidivism, J.J. Prescott, Benjamin Pyle, Sonja B. Starr

Notre Dame Law Review

People convicted of violent crimes constitute a majority of the imprisoned population but are generally ignored by existing policies aimed at reducing mass incarceration. Serious efforts to shrink the large footprint of the prison system will need to recognize this fact. This point is especially pressing at the time of this writing, as states and the federal system consider large-scale prison releases motivated by the COVID-19 pandemic. Those convicted of violent crimes constitute a large majority of older prisoners, who are extremely vulnerable to the spread of the virus behind bars. Excluding them from protective measures will deeply undermine those ...

From First Steps To Second Chances: Addressing Mass Incarceration In State Prisons, Molly Connor

Notre Dame Law Review

In order to address mass incarceration meaningfully, Congress must pass legislation aimed at reducing state prison populations. The legislation’s name (the First Step Act) suggests there will be follow-up legislation—that Congress’s end goal has yet to be fully realized. This Note explores the details of the First Step Act with an eye toward drafting the “Second Step Act” in a way that adequately addresses the root causes of mass incarceration. In Part I, this Note discusses the events leading up to the passage of the First Step Act and its key provisions addressing sentencing reform and rehabilitative ...

Stare Decisis And The Supreme Court(S): What States Can Learn From Gamble, Zachary B. Pohlman

Notre Dame Law Review

While almost all questions before the Supreme Court require statutory or constitutional interpretation, state courts of last resort occupy a unique place in the American judicial landscape. As common-law courts, state supreme courts are empowered to develop common-law doctrines in addition to interpreting democratically enacted texts. This Note argues that these two distinct state court functions—interpretation of statutes and constitutions, and common-law judging—call for two distinct approaches to stare decisis, a distinction that is often muddied in practice. Justice Thomas’s concurrence in Gamble v. United States provides the framework for each approach, a framework based on the ...

In Terrorem Clauses: Broad, Narrow, Or Both?, Evan J. Shaheen

Notre Dame Law Review

While the idea of the “carrot and stick” seems simple in theory, in terrorem clauses are governed by state law, with their application varying in large part by jurisdiction. Nevertheless, this Note seeks to identify some of the broad principles on which many in terrorem clauses rely, while also delineating several of the different state law approaches thereto. It does this by describing some of the potential problems with in terrorem clauses and posing potential solutions in the context of a variety of state law jurisprudence.

This Note will first address what will be defined as the “puppet problem.” By ...

Further Harm And Harassment: The Cost Of Excess Process To Victims Of Sexual Violence On College Campuses, Hannah Walsh

Notre Dame Law Review

This Note argues that in employing the Mathews v. Eldridge test to formulate the constitutional minimum process necessary to satisfy the Fourteenth Amendment in a Title IX university disciplinary hearing, federal courts have failed to adequately weigh the inevitable harm to survivors that will result from allowing one accused of sexual assault to personally cross-examine their accuser as part of the government interest at stake. Furthermore, this Note contends that any institution permitting the practice of respondents cross-examining their complainants commits sex discrimination in violation of Title IX by directly inflicting harm on its female students. Part I will provide ...

Fiduciary Injury And Citizen Enforcement Of The Emoluments Clause, Meredith M. Render

Notre Dame Law Review

The text of the Emoluments Clause provides no explicit enforcement mechanism, raising questions about who may enforce the Clause, and the mechanism by which it might be enforced. Is the Clause enforceable exclusively by collective action—such as an impeachment proceeding by Congress—or is it also enforceable by individual action—such as a private lawsuit? If the Emoluments Clause can be enforced by private action, who has standing to sue? In the absence of explicit textual guidance, a broader constitutional theory is required to render enforcement of the Clause coherent.

This Article presents that broader theory. The Article argues ...

Into The Weeds: Modern Discrimination Law, Sandra F. Sperino

Notre Dame Law Review

Since the 1970s, the federal courts have created a number of frameworks to analyze discrimination claims. Each framework provides a roadmap for proving a certain theory of discrimination. Over time, the courts have added bells and whistles to these basic roadmaps. These court-created ancillary doctrines or subdoctrines require an ever-increasing amount of judicial attention.

While legal scholars have challenged the ancillary doctrines individually, this Article examines them collectively. When viewed collectively, it is easier to see how the system of creating and using ancillary doctrines is significantly flawed. Any benefits that derive from it are outweighed by its problems.

This ...

The Traditions Of American Constitutional Law, Marc O. Degirolami

Notre Dame Law Review

This Article identifies a new method of constitutional interpretation: the use of tradition as constitutive of constitutional meaning. It studies what the Supreme Court means by invoking tradition and whether what it means remains constant across the document and over time. Traditionalist interpretation is pervasive, consistent, and recurrent across the Court’s constitutional doctrine. So, too, are criticisms of traditionalist interpretation. There are also more immediate reasons to study the role of tradition in constitutional interpretation. The Court’s two newest members, Justices Neil Gorsuch and Brett Kavanaugh, have indicated that tradition informs their understanding of constitutional meaning. The study ...

Public Rights After Oil States Energy, Adam J. Macleod

Notre Dame Law Review

The concept of public rights plays an important role in the jurisprudence of the Supreme Court of the United States. But as the decision in Oil States last Term revealed, the Court has often used the term to refer to three different concepts with different jurisprudential implications. Using insights drawn from historical and analytical jurisprudence, this Article distinguishes the three concepts and examines how each of them is at work in patent law. A precise reading of Oil States also bears lessons for other areas of law that implicate both private rights and duties and the administration of public, regulatory ...

Religious Liberty, Discrimination, And Same-Sex Marriage: Escaping The Obergefell Catch-22, Timothy Bradley

Notre Dame Law Review

This Note will explore the tension between Justice Kennedy’s words in Obergefell v. Hodges regarding the decent and honorable premises behind the judgment of many Americans that same-sex marriage is immoral (or, strictly speaking, impossible), and the treatment afforded to those who attempt to live out those supposedly decent and honorable beliefs in the public square—bakers, florists, photographers, pizza connoisseurs, and more. It will assess the relationship between religious liberty, freedom of speech, and antidiscrimination laws by focusing on issues in the realm of sex and marriage, though complicity claims like the ones explored here arise in various ...

Can A "Mere Employee" Stop You From Vaping? The Appointments Clause Applied To Rulemakers, Melinda Holmes

Notre Dame Law Review

This Note analyzes whether actors discharging the rulemaking function of an agency are officers and discusses whether persons not appointed pursuant to the Appointments Clause can constitutionally exercise such power. Part I examines the development of the doctrine over time leading to Lucia. Part II presents possible frameworks for challenges following Lucia. Part III traces delegation of authority from Congress to the agency and from senior agency officials to the individual who actually exercises the delegated authority. In doing so, it explores how the framework should apply in the rulemaking context, focusing on the example presented by litigation challenging the ...

Three Questions About "Stand Your Ground" Laws, Cynthia V. Ward

Notre Dame Law Review Reflection

Stand Your Ground laws, and the issues they generate, do raise serious questions about what constitutes justice in cases that give rise to claims of self-defense. In order to resolve those questions, we first need to understand what the self-defense doctrine actually says and how it was designed to work. It is necessary to specify the ways in which Stand Your Ground provisions do, and do not, affect that doctrine.

In this Essay I will raise three issues about Stand Your Ground and self-defense. In addressing these issues I will use Florida law as a template because the Stand Your ...

Fisa Section 702: Does Querying Incidentally Collected Information Constitute A Search Under The Fourth Amendment?, Rachel G. Miller

Notre Dame Law Review Reflection

An inherent source of conflict in the United States exists between protecting national security and safeguarding individual civil liberties. Throughout history, Americans have consistently been skeptical and fearful of the government abusing its power by spying on Americans. In an effort to curtail government abuses through surveillance, President Carter and Congress enacted the Foreign Intelligence Surveillance Act of 1978 (FISA). The purpose of FISA was to establish a “statutory procedure authorizing the use of electronic surveillance in the United States for foreign intelligence purposes.” FISA provides the government with the authority to engage in electronic surveillance, targeted at foreign powers ...