Law Commons^™

Analysis Of Statutory Religious Accomodations For State-Employed Religious Objectors To Same-Sex Marriage Solemnization, Nicholas J. Schilling Jr.

Notre Dame Journal of Law, Ethics & Public Policy

The Supreme Court’s landmark decision in Obergefell v. Hodges legalized same-sex marriage. The decision aggravated a tension between advocates of protection of religious beliefs that reject as wrong same-sex marriage and sponsors of the new legal norm of same-sex marriage as a fundamental right.

Prior to—and in response to—the Supreme Court’s decision in Obergefell, at least ten state legislatures debated bills that would provide exemptions for state officials who, on religious grounds, objected to the certification of marriage licenses for same-sex couples. Unless otherwise established by state law, officials who swear an oath to protect and defend the Constitution must …

Wait, Who Are We Talking About Here? Searching For A Consistent Approach To Applying Rfra To Corporations, Steven J. Harrison

Notre Dame Journal of Law, Ethics & Public Policy

There is perhaps no idea in contemporary American law that is more publicly contentious than that of “corporate personhood.” Of all of the Supreme Court cases dealing with corporations and the corporate entity, few probably thought that a decision could surpass Citizens United in public controversy and divisiveness produced by the decision, which brought the legal fiction of the “corporate person” to the forefront of popular debate and discussion. Then came Burwell v. Hobby Lobby Stores, Inc., which not only addressed whether corporations could “act” in a manner that seemed only a possibility for “real” or “natural” persons, which recalled …

Dead Or Alive? The Law, Policy, And Market Effects Of Legislation On Unclaimed Life Insurance Benefits, James M. Carson, Robert E. Hoyt, Tim R. Samples

Notre Dame Journal of Law, Ethics & Public Policy

A wave of multi-state audits on the insurance industry’s use of the Social Security Administration’s Death Master File (DMF) stirred national controversy over the status of unclaimed life insurance proceeds. Multi-state investigations uncovered “asymmetric” use of the DMF among many large insurance companies. Accusations of unethical behavior led to numerous settlement agreements between state regulators and insurers. Payouts and fines stemming from these settlements already number in the billions of dollars. Legislative responses are also underway. Some states have adopted—and others are considering—legislation requiring life insurers to search the DMF to identify and pay (or eascheat) unclaimed death benefits. Currently, …

The Consequences Today Of The United States' Brutal Post-9/11 Interrogation Techniques, Peter Jan Honigsberg

Notre Dame Journal of Law, Ethics & Public Policy

Penetrating the minds and souls of alleged terrorists while still upholding the constitution, federal law, and the human rights obligation to treat the suspects with dignity and without torture or cruel, inhuman, and degrading treatment was not the immediate objective for high-ranking American officials and military interrogators in the early years following the attacks on the World Trade Center in New York and the Pentagon in Washington, D.C. on September 11, 2001. Although the United States was a party to the Geneva Conventions (GC), the International Covenant on Civil and Political Rights (ICCPR), and the Convention Against Torture (CAT)—all three …

Minors In The Major Leagues: Youth Courts Hit A Home Run For Juvenile Justice, Christina M. Dines

Notre Dame Journal of Law, Ethics & Public Policy

Youth courts provide an efficient—albeit unconventional—alternative to the formal juvenile justice system. Although structures of youth courts vary, the purpose remains the same: to rehabilitate and deter youth offenders in a forum largely governed by their minor peers—one free of the stigma associated with the traditional justice system. This Note examines the expansion of youth courts; various structures of the courts; advantages and disadvantages of a system driven by peer mentorship and peer decision- making; typical sanctions imposed on a juvenile offender; and the wider implications of youth court from an economic and social justice perspective.

Investigative Journalism And Counter Terrorism Laws, Clive Walker

Notre Dame Journal of Law, Ethics & Public Policy

Since terrorism is now perceived as a primary and pervasive threat to state security, many states have adopted broad legal definitions of “terrorism” and, upon that basis, have enacted correspondingly expansive policing powers and criminal offences. As a dramatic instance of how these approaches, which affect major Western jurisdictions such as the U.S. and U.K., this paper will focus on the paradigm case of David Miranda. In August 2013, Miranda was transporting computer materials (including files from security agencies) supplied by Edward Snowden, a former contractor with the U.S. National Security Agency, to journalist Glenn Greenwald to assist ongoing disclosures …

Dynamic Regulatory Constitutionalism: Taking Legislation Seriously In The Judicial Enforcement Of Economic And Social Rights, Richard Stacey

Notre Dame Journal of Law, Ethics & Public Policy

The international human rights revolution in the decades after the Second World War recognized economic and social rights alongside civil and political rights. The Universal Declaration of Human Rights in 1949, the International Covenant on Economic, Social, and Cultural Rights in 1966, regional treaties, and subject-specific treaties variously describe rights to food, shelter, health, and education, and set out state obligations for the treatment of children. When they first appeared, these international, economic, and social rights instruments raised questions about whether economic and social rights are justiciable in domestic legal contexts and whether they can be meaningfully enforced by courts …

Hungary's Refugee Crisis: Why A Uniform Approach Is Not The Solution, Yvonne Kupfermann

Notre Dame Journal of Law, Ethics & Public Policy

The recent refugee crisis that swept over many European nations requires an inquiry into how to balance humanitarian concerns with the resources of the respective nations involved. Oftentimes, the approach is purely humanitarian, placing much of the focus on inclusion and resettlement. However, countries that stray from this humanitarian approach are often criticized. This Note aims to offer a new theoretical framework for analyzing a refugee crisis of this scope. It uses Hungary as a case study to demonstrate how history can play a role in how a refugee crisis is handled and to provide concrete examples of a country …

Efficiency, Enforcement, And Punishment, Jim Staihar

Notre Dame Journal of Law, Ethics & Public Policy

The law and economics literature on punishment reveals strong reasons of efficiency to adopt an extreme enforcement policy for any type of crime as a means to promoting deterrence. Under such an extreme policy, a crime’s severity of punishment would be set extremely high, but its probability of punishment would be set extremely low by minimizing the resources devoted to enforcing the law against the crime. This sort of policy applied to a moderately serious crime, such as a simple assault, would seem strongly unreasonable all things considered. However, it is not immediately obvious why such a policy would be …

The Equivalence Of Religion And Conscience, Lucien J. Dhooge

Notre Dame Journal of Law, Ethics & Public Policy

This Article examines issues posed by the equation of religious liberty with secular conscience, utilizing federal law and the law in those states which have adopted religious freedom restoration acts (RFRAs). The Article initially addresses the definition of religion through an examination of applicable literature and federal and state case law. The same approach is utilized to define conscience. The Article then examines similarities between the two concepts and the implications of their equivalence. The Article concludes that religion and conscience are moral equivalents that require equal legal treatment. However, equal treatment should proceed with caution in order to address …

Representing The United States Government: Reconceiving The Federal Prosecutor's Role Through A Historical Lens, Scott Ingram

Notre Dame Journal of Law, Ethics & Public Policy

For nearly 100 years courts and legal scholars have held prosecutors to the “justice” standard, meaning that the prosecutor’s first duty is to ensure that justice is done. With this command, prosecutors have increased their discretion. The modern prosecutor’s power is unrivaled in the criminal justice system. Judges and defense attorneys have ceded some of their power to prosecutors. The prosecutor’s power has led a host of commentators to critique prosecutorial use of power for a variety of reasons. Rather than add to this voluminous literature by defending or critiquing prosecutorial power, this Article challenges the underlying assumption of prosecutorial …

Failure To Protect: Our Civil System's Chronic Punishment Of Victims Of Domestic Violence, Kate Ballou

Notre Dame Journal of Law, Ethics & Public Policy

This Note examines the effectiveness and enforceability of civil restraining orders in domestic violence cases in the wake of Town of Castle Rock v. Gonzalez, which held that there is no constitutional right to the enforcement of a restraining order. This Note analyzes the impact of Gonzales and the effectiveness of various restraining order statutory schemes more broadly. This Note subsequently addresses that as a result of experiencing continued contact from their attackers, victim mothers are more likely to have their children removed by the state in child welfare proceedings, due to the established presumption in most family courts that …

Competent Hunger Strikers: Applying The Lessons From Northern Ireland To The Force-Feeding In Guantanamo, Sara Cloon

Notre Dame Journal of Law, Ethics & Public Policy

The United States allows force-feeding of prisoners, regardless of their state of mind or mental health because they deem preservation of life as paramount. In the United Kingdom, a prisoner who is of a sound mind “can be allowed to starve himself to death.”1 This difference is due to the balance between the importance of preservation of life and of the right to self-determination and autonomy in medical decisions. My note will first briefly explore the history of force-feeding prisoners who are protesting for political purposes in both countries, and the relevant cases and statues that led up to the …

Can Armed Drones Halt The Trend Of Increasing Police Militarization?, Ian Thresher

Notre Dame Journal of Law, Ethics & Public Policy

Following presidential declarations of “war” on drugs and terror, domestic law enforcement agencies were saddled with difficult and dangerous new duties. They responded to the danger by becoming more dangerous themselves; increasingly adopting the training, tactics, and equipment of the United States military. This “militarization” of domestic police officers has, predictably, led to a breakdown in community policing, almost one thousand fatal shootings by police officers per year, and growing rifts between law enforcement agencies and the communities they are sworn to protect. In this essay, I examine whether police drones armed with non-deadly force might, perhaps paradoxically, help to …

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. …