Law Commons^™

Mmu: 02/11/19–02/17/19, Notre Dame Law School

Monday Morning Update

Monday Morning Update

Submit Acts for the Father Mike Show

Law Students needed for ITA Jury Trials

Attend the U.S. Court of Appeals for Veterans Claims Judicial Conference - Scholarships Available!

Commons Lunch Menu

Mass Schedule

Weekly Morning Prayer

Legal Writing Center

Invitation to all NDLS Student Groups

Health & Wellness Information

This Week @ NDLS

1L of the Week

Long Reads of the Week

Mmu: 02/04/19–02/10/19, Notre Dame Law School

Monday Morning Update

Monday Morning Update

150 Years of ND Law

Law Students Needed for ITA Jury Trials

Attend the U.S. Court of Appeals for Veterans Claims Judicial Conference- Scholarships Available

3L Announcement

Mass Schedule

Weekly Morning Prayer

Legal Writing Center

Invitation to all NDLS Student Groups

Health & Wellness Information

This Week @ NDLS

1L of the Week

Long Reads of the Week

Mmu: 01/28/19–02/03/19, Notre Dame Law School

Monday Morning Update

Barrister's Ball

150 Years of ND Law

Attend the U.S. Court of Appeals for Veteran's Claim Conference- Scholarships Available

Mass Schedule

Weekly Bible Study

Legal Writing Center

Invitation to all NDLS Student Groups

This Week @ NDLS

Health & Wellness Information

1L of the Week

3LOL of the Week

Long Reads of the Week

Letter From The Editor, Lara Thiele

Notre Dame Journal of International & Comparative Law

No abstract provided.

The Right-To-Work For Rohingya In Thailand, Lara Thiele

Notre Dame Journal of International & Comparative Law

The world finds itself currently in the biggest refugee crisis in history. Many individuals have to leave their home country and escape to a new home, hoping to remain there and begin a productive and dignified life. The stateless Rohingya are a group that has been part of this migratory movement due to the group’s maltreatment in Myanmar. Many Rohingya have gone to Thailand, where they have remained for over twenty years, without the permission to work or remain in the country lawfully. In fact, the current Thai laws neglect to allow for the Rohingya to remain lawfully in ...

Remedies For Victims Of Human Trafficking Under The Palermo Protocol And United Nations Basic Principles: A Case Study Analysis, Josephine A. Suchecki

Notre Dame Journal of International & Comparative Law

Human trafficking is a phenomenon that is happening right under our noses, yet does not receive the recognition nor publicity necessary to combat this human rights crisis. The Palermo Protocol and the United Nations Basic Principles have been implemented on an international level to solve these issues, but with varied success. The Palermo Protocol was created to apply to the prevention, investigation, and prosecution of the offenses established in article 5 of the Protocol. The Basic Principles from A/HRC/26/18 highlight the fact that effective remedies are not often accessible to victims of trafficking, as there are gaps ...

A Catholic Response To Global Climate Change Migration, Michael S. Talbot

Notre Dame Journal of International & Comparative Law

This Article examines Catholic Social Teaching’s approach to the challenges of human migration and environmental refugees. By juxtaposing the inadequacies of current international frameworks for protecting environmental migrants with previous sources of Catholic Social Teaching, this Article speculates on the possible moral argument to be made by the Church in support of efforts to fill a gap in the international legal framework around climate change induced migration. Ultimately, the Paper speculates that such an argument would include three components: (1) a broadening of the definition of refugee, (2) a recognition of our interconnected and interdependent lives, and (3) the ...

Right To A Healthy Prison Environment: Health Care In Custody Under The Prism Of Torture, Juan E. Méndez

Notre Dame Journal of International & Comparative Law

Deprivation of adequate health care — including preventive and remedial therapies — violates State obligations under domestic and international law. Because it deprived inmates of a fundamental right it is appropriate to analyze the scope of that obligation under norms of international law that are binding as treaty law or as customary international law. Recent developments in international standards illuminate the scope of the State’s obligations to provide health care to persons deprived of liberty. Salient among those recent developments in the normative framework is the most recent version of the UN Standard Minimum Rules for the Treatment of Prisoners, amended ...

Masthead Volume 9

Notre Dame Journal of International & Comparative Law

No abstract provided.

The Employee Right To Disconnect, Paul M. Secunda

Notre Dame Journal of International & Comparative Law

U.S. workers are increasingly finding it difficult to escape from work. Through their smartphones, e-mail, and social media, work tethers them to their workstations well after the work day has ended. Whether at home or in transit, employers are asking or requiring employees to complete assignments, tasks, and projects outside of working hours. This practice has a profound detrimental impact on employee privacy and autonomy, safety and health, productivity and compensation, and rest and leisure. France and Germany have responded to this emerging workplace issue by taking different legal approaches to providing their employees a right to disconnect from ...

18 U.S.C. § 3553(A)’S Undervalued Sentencing Command: Providing A Federal Criminal Defendant With Rehabilitation, Training, And Treatment In “The Most Effective Manner”, Erica Zunkel

Notre Dame Journal of International & Comparative Law

The vast majority of federal criminal defendants are sentenced to prison, and non-incarceration sentences have become vanishingly small. During the sentencing process, federal district court judges are required to consider what sentence will provide the defendant with necessary rehabilitation and treatment in the most effective manner pursuant to 18 U.S.C. § 3553(a)(2)(d). Courts regularly undervalue, ignore, or even violate this statutory command. Some courts seem to believe that the Bureau of Prisons can provide adequate rehabilitation and treatment and do not explain how this squares with what the statute requires. Other courts barely engage with the ...

Mmu: 01/21/19–01/27/19, Notre Dame Law School

Monday Morning Update

Monday Morning Update

Father Mike Show: Rescheduled to April 2

Congratulations to SCELF MLB Arbitration Participants

Walk the Walk Week

Mass Schedule

Weekly Bible Study

Legal Writing Center

Invitation to All NDLS Student Groups

Health & Wellness Information

This Week @ NDLS

1L of the Week

Long Reads of the Week

Mmu: 01/14/19–01/20/19, Notre Dame Law School

Monday Morning Update

Stanford Professor Marcus Cole Appointed Dean of Notre Dame Law School

Welcome Our New Registrar Jenny Fox!

RSVP: A Conversation with Nina Totenberg

Mass Schedule

Announcement - Weekly Bible Study

Legal Writing Center

Invitation To All NDLS Student Groups

Health & Wellness Information

This Week @ NDLS

Song of the Week

Meme of the Week

1L of the Week

3L of the Week & Announcing "Kesh's Korner"

Long Reads of the Week

A. Harold Weber Writing Award, Notre Dame Law School

Student, Faculty, and Staff Awards

For Excellence in Legal Writing
What will it profit you to know all the law and the prophets if you lack the power to make these clear to others? – Lloyd T. Stryker

Splitsylvania: State Secession And What To Do About It, Glenn Harlan Reynolds

Notre Dame Law Review Online

Intrastate secession is the true secession fever: not the perennial postelection calls of losing parties to secede from a nation controlled by the opposition, but a growing movement for secession from states, with the rural parts of states (sometimes geographically very large parts of states) wanting to separate from the population-dense urban areas that essentially control state decisionmaking. Feeling ignored, put-upon, and mistreated, secessionists want to take their fate into their own hands. These movements are common, but not likely to succeed on their own, as intrastate secession is, though not entirely unknown (see, e.g., West Virginia), very difficult ...

Falling Through The Gap: The Culpability Of Child Soldiers Under International Criminal Law, Ally Mcqueen

Notre Dame Law Review Online

This Essay, in Part I, will begin with an overview of the use of child soldiers in armed conflicts around the world. Part II will explore provisions within the Geneva Conventions, the Convention on the Rights of the Child, and the Beijing Rules that are applicable to child soldiers and can shed some light on their culpability after an armed conflict. In Part III, this Essay will then discuss the varying degrees to which international criminal tribunals and the International Criminal Court have addressed the criminal responsibility of children for war crimes and crimes against humanity. Finally, Part IV will ...

Whatever Did Happen To The Antitrust Movement?, Herbert Hovenkamp

Notre Dame Law Review

This Article begins with a historical question about whatever happened to the antitrust movement. The short answer is that antitrust grew up. It ceased to be the stuff of political banners and loose rhetoric and turned into a serious discipline, applying defensible legal and empirical techniques to problems within its range of competence.

The way to repair deficiencies in antitrust law today is not to resort to an undisciplined set of goals that provide no guidance and could do serious harm to the economy. Rather, it is to make ongoing adjustments in our technical rules of antitrust enforcement which reflect ...

Due Process Of War, Nathan S. Chapman

Notre Dame Law Review

The application of the Due Process Clause of the Fifth Amendment to the government’s deprivation of rights during war is one of the most challenging and contested questions of constitutional law. The Supreme Court has not provided a consistent or historically informed framework for analyzing due process during war. Based on the English background, the text and history of the U.S. Constitution, and early American practice, this Article argues that due process was originally understood to apply to many but not to all deprivations of rights during war. It proposes a framework for analyzing due process during war ...

Beyond Bankruptcy: Resolution As A Macroprudential Regulatory Tool, Steven L. Schwarcz

Notre Dame Law Review

Postcrisis efforts to extend bankruptcy-resolution techniques to protect the stability of the financial system have been insufficient, in part because regulators have been conflating bankruptcy’s traditional goals of resolving troubled firms individually with the need to resolve critical elements of the financial system to ensure its continued operation as a “system.” This requires resolving troubled firms collectively, as well as resolving securities-trading markets and the infrastructure that serves to facilitate that trading. The Article examines how to design that regulation, differentiating three approaches: reactive regulation, which comprises variations on traditional bankruptcy; proactive regulation, which consists of preplanned enhancements that ...

Why Do Startups Use Trade Secrets?, David S. Levine, Ted Sichelman

Notre Dame Law Review

Empirical studies of the use of trade secrecy are scant, and those focusing on startups, nonexistent. In this Article, we present the first set of data—drawn from the Berkeley Patent Survey—on the use of trade secrets by U.S. startup companies in the software, biotechnology, medical device, and hardware industries. Specifically, we report on the prevalence of trade secrecy usage among startups. Additionally, we assess the importance of trade secrets in relation to other forms of intellectual property protection and barriers to entry, such as patents, copyrights, firstmover advantage, and complementary assets. We segment these results by a ...

The Depravity Of The 1930s And The Modern Administrative State, Steven G. Calabresi, Gary Lawson

Notre Dame Law Review

Gillian Metzger’s 2017 Harvard Law Review foreword, entitled 1930s Redux: The Administrative State Under Siege, is a paean to the modern administrative state, with its massive subdelegations of legislative and judicial power to so-called “expert” bureaucrats, who are layered well out of reach of electoral accountability yet do not have the constitutional status of Article III judges. We disagree with this celebration of technocratic government on just about every level, but this Article focuses on two relatively narrow points.

First, responding more to implicit assumptions that pervade modern discourse than specifically to Professor Metzger’s analysis, we challenge the ...

Evidence Without Rules, Bennett Capers

Notre Dame Law Review

Much of what we tell ourselves about the Rules of Evidence—that they serve as an all-seeing gatekeeper, checking evidence for relevance and trustworthiness, screening it for unfair prejudice—is simply wrong. In courtrooms every day, fact finders rely on “evidence”—for example, a style of dress, the presence of family members in the gallery, and of course race—that rarely passes as evidence in the formal sense, and thus breezes past evidentiary gatekeepers unseen and unchecked. This Article calls much needed attention to this other evidence and demonstrates that such unregulated evidence matters. Jurors use this other evidence to ...

Blank Checks: An Analysis Of Emergency Actions Warranting Unilateral Executive Action, Megan E. Ball

Notre Dame Law Review

This Note discusses the separation of powers issues raised in the D.C. Circuit by then-Judge, now Justice Kavanaugh in Mexichem Fluor’s suit. Specifically, this Note analyzes the federal government’s approach to climate change, overreach of the EPA to act beyond its statutorily granted authority, and the EPA’s reliance upon President Obama’s executive directives as the justification for its overreach. Part I of this Note provides a broad introduction of the CAA and the importance of the policy motivations for the later addition of Title VI to the Act. Part II discusses in more depth the ...

Too Much Of A Good Thing: Overcrowding At America's National Parks, Abby L. Timmons

Notre Dame Law Review

This Note focuses on the National Park Service’s failure to act in adopting a carrying capacity for each park specifically, and discusses some of the negative effects this failure has had on individual parks. Part I provides a general background of the national parks system and will more fully explore the dual aims of its Organic Act. Part II discusses the NPS’s affirmative response to the 1978 amendment requiring carrying capacities, while Part III focuses on the ramifications of the widespread nonresponse by many of the parks. Part IV considers possible fixes, including not only inspiring the NPS ...

Transborder Speech, Ronald J. Krotoszynski Jr.

Notre Dame Law Review

In an increasingly globalized marketplace of ideas, First Amendment law and theory must recognize that the freedom of speech does not end at the water’s edge. Simply put, the locus of expressive activity should not prefigure the government’s ability to engage in censorship. Nevertheless, under current First Amendment law and practice, the accident of geography may serve as a constitutionally acceptable basis for content-based censorship of speech. If, as the Supreme Court argued with such ferocity in Citizens United, the value of speech to an audience does not depend on the speaker’s identity or motive for speaking ...

Gains, Losses, And Judges: Framing And The Judiciary, Jeffrey J. Rachlinski, Andrew J. Wistrich

Notre Dame Law Review

Losses hurt more than foregone gains—an asymmetry that psychologists call “loss aversion.” Losses cause more regret than foregone gains, and people struggle harder to avoid losses than to obtain equivalent gains. Loss aversion produces a variety of anomalous behaviors: people’s preferences depend upon the initial reference point (reference-dependent choice); people are overly focused on maintaining the status quo (status quo bias); people attach more value to goods they own than to identical goods that they do not (endowment effect); and people take excessive risks to avoid sure losses (risk seeking in the face of losses). These phenomena are ...

Prosecuting Corruption After Mcdonnell V. United States, Terence A. Parker

Notre Dame Law Review

This Note proceeds in five Parts. Part I provides a background discussion of the facts and holding in McDonnell. Part II goes on to analyze McDonnell through the lens of three recent federal public corruption cases, discussing how the decision has been applied to both specific act and stream of benefits prosecutions. Part III argues that the narrower official acts definition announced by the McDonnell Court will not result in a sea change to corruption prosecutions. Part IV argues for the resilience of the stream of benefits theory of public corruption in the aftermath of McDonnell. Finally, Part V argues ...

The Equal Rights Amendment Revisited, Bridget L. Murphy

Notre Dame Law Review

This Note proceeds in three Parts. Part One chronicles the history of the Equal Rights Amendment, from the original attempt at passage through the various reiterations thereafter. Part Two describes the legal background, including constitutional and legislative protection against discrimination on the basis of sex. Part Three of this Note then demonstrates that a faithful understanding of the existing constitutional and legislative protections reveals inherent weaknesses. Specifically, the original understanding of the Fourteenth Amendment did not contemplate protection from sex-based discrimination, and the word “sex” as a prohibited basis for discrimination in Title VII was added as a last-minute attempt ...

Mmu: 12/03/18–12/09/18, Notre Dame Law School

Monday Morning Update

Father Mike Scheduled: Tuesday, March 26

Take Home Exam Schedule

Political Science Dept Seeks TAs

Mass Schedule

Announcement - Weekly Bible Study

Legal Voices for Children & Youth Christmas Drive

Legal Writing Center

Invitation to all NDLS Student Groups

Health & Wellness Information

This Week @ NDLS

Song of the Week

Meme of the Week

1L of the Week

Long Reads of the Week

Mmu: 11/26/18–12/02/18, Notre Dame Law School

Monday Morning Update

Political Science Dept Seeks TAs

Graduate Student Network to Host Winter Formal

Mass Schedule

Announcement - Weekly Bible Study

Legal Voices for Children & Youth Christmas Drive

Legal Writing Center

Invitation to all NDLS Student Groups

Health & Wellness Information

This Week @ NDLS

Song of the Week

Meme of the Week

1L of the Week

#3LOL of the Week

Long Reads of the Week