Law Commons^™

An Introduction To Personal Growth Bets: Using Contract Law To Lose Weight And Quit Smoking, Max Raskin, Jack Millman

Notre Dame Journal on Emerging Technologies

Self-improvement is hard. Whether losing weight or quitting smoking, individuals have a difficult time honoring their commitments, especially if the only person they are disappointing is themselves. In this Article, we introduce a new legal mechanism for incentivizing personal growth. We describe this mechanism as a personal growth contract, which allows an individual to make an enforceable agreement with either a counterparty or himself with the aim of self-improvement. We propose the use of smart contracts to help execute unilateral personal growth contracts. Our conclusion is that personal growth contracts should be presumptively legal, provided they do not violate some …

The Code Of Life And Death, Braden R. Leach

Notre Dame Journal on Emerging Technologies

Biotechnology is advancing at an astonishing clip, but our safeguards are decades behind. Given new technologies and economies of scale, it is possible for nefarious actors to assemble deadly viruses from scratch using synthetic DNA ordered off the internet. The Select Agents statute helps to prevent malicious actors from acquiring dangerous pathogens, but the Department of Health and Human Services has interpreted it to not cover synthetic DNA. Recognizing the gap, HHS issued guidance recommending that gene synthesis companies verify their customers to ensure their legitimacy and screen genetic sequences for matches to pathogen sequences. Unsurprisingly, voluntary guidance has not …

The High Cost Of Pharmaceutical Acquisitions: Increasing Social Welfare Or Furthering Inequality?, Timothy J. Haltermann

Notre Dame Journal on Emerging Technologies

This note will argue that government and regulatory authorities should focus on easing access to downstream innovation by broadening research exemptions to patent infringement. Part I of this note will focus on the current state of patent protection and exclusivity afforded to pharmaceutical companies. Part II will discuss incentives created that lead rational actors to engage in M&A instead of through internal R&D. Part III will address the development of innovation as a standalone theory of harm in merger review, and the fallacies associated with labeling certain transactions as “killer acquisitions.” Finally, Part IV of the note will look at …

A Sleeping Giant: Mhelath Applications, The Gdpr, And The Need For Federal Privacy Regulation In The United States, Kali Peeples

Notre Dame Journal on Emerging Technologies

An analysis of privacy regulation concerning mHealth apps is a multifaceted process that requires the examination of changes within not only the healthcare space but also the technological world, as well as the legislative history and intent of various nations.The main issue being addressed in this paper is whether the United States should create nationwide legislation that directly relates to mHealth data protection or continue with a self-regulatory method. Part I focuses on the development and rapid creation of mHealth apps within the past decade. Part II seeks to illustrate the distinct privacy concerns of mHealth apps by concentrating on …

The Price Of Competition: Analyzing Anticompetitive Tactics In Pharmaceutical Markets During The Hatch-Waxman Era, William Ulrich

Notre Dame Journal on Emerging Technologies

Pharmaceutical manufacturers can delay the generic entry for a blockbuster drug. In order to keep the generic system on track, it is critical to expose the various avenues of generic delay. Part I of this Note briefly describes the generic entry process as prescribed by the Hatch-Waxman Act. Part II details four well-known tactics used by brand-name manufacturers to block or delay the entry of generic competition, highlighting how the tactics are successful. Part III concludes by examining the nature of the various problems and arguing that the first step towards ending the different forms of anticompetitive behavior is through …

Religious Liberty For Religious Child-Welfare Organizations: Promises And Perils, Asma T. Uddin

Notre Dame Law Review Reflection

In the 2015 case Obergefell v. Hodges, the U.S. Supreme Court held that states cannot deny same-sex couples access to marriage and its accompanying benefits. Some religious communities with traditional beliefs about marriage and sexuality responded to the ruling with strong concerns about its potential impact on their religious exercise.

One area of concern involved religious child-welfare organizations that work with the state to provide these services. In all states, there are two options for prospective parents seeking to adopt children. In the private system, birth parents voluntarily place their child up for adoption through a private organization. In …

Is Tax Law Different? Unconstitutional Conditions, Religious Organizations, And Taxation, Lloyd H. Mayer

Notre Dame Law Review Reflection

In common with other charities, religious organizations enjoy significant benefits under federal tax law, including exemptions from income tax and the ability of donors to deduct their contributions for income, gift, and estate tax purposes. A subset of religious organizations consisting of “churches,” which include houses of worship for all sects, and certain church-related entities also enjoy unique and significant procedural advantages. These include not having to apply to the Internal Revenue Service (IRS) for recognition of tax exemption, not having to file annual information returns with the IRS, and being subject to IRS inquiries and examinations only if the …

Free Exercise Renewal And Conditions On Government Benefits, Thomas C. Berg

Notre Dame Law Review Reflection

When the government puts a condition on funding or other benefits that it provides, can it impose that condition on a recipient (organization or individual) whose religious character or tenets conflict with the condition? That question arises in some of today’s most prominent religious-freedom controversies, actual and potential. Conditions accompanying certain federal contracts and funding programs prohibit discrimination based on religion or sexual orientation; those conditions may prevent a recipient organization from requiring that its leaders or employees affirm or live consistently with its religious tenets. Even the highly uncertain prospect that the federal government might someday strip tax exemptions …

Germaneness And Religious Liberty, Michael P. Moreland

Notre Dame Law Review Reflection

One problem posed by a symposium on the doctrine of unconstitutional conditions and religious liberty is that it turns out there is not much actual doctrine in the area. The leading law and religion casebook contains only three references—each a passing mention—to unconstitutional conditions, characterizing Sherbert v. Verner as an unconstitutional conditions case and noting the relevance of unconstitutional conditions to the recent Trinity Lutheran Church of Columbia, Inc. v. Comer to Carson v. Makin line of funding cases. And so while the issue of unconstitutional conditions has been a topic in constitutional law more generally and is widely regarded …

There Are No Unconstitutional Conditions On Free Exercise, Michael A. Helfand

Notre Dame Law Review Reflection

Maybe no passage about the unconstitutional conditions doctrine is quite as memorable as the judgment rendered by Adam Cox and Adam Samaha: “You can easily question the judgment of anyone who writes a paper, even an essay, with ‘unconstitutional conditions’ in the title. The topic is very 1980s and scholars lost their enthusiasm for it not long after the Go-Go’s broke up.”

And yet, recent court decisions—and the government response to them—have thrust the doctrine back onto the scholarly agenda. At the center of this renewed interest is a series of recent Supreme Court cases prohibiting exclusion of religion and …

Assisted Suicide, Forced Cooperation, And Coercion: Reflections On A Brewing Storm, Lucia A. Silecchia

Notre Dame Law Review Reflection

Because government funds to institutions and individuals finance a significant amount of medical care in the United States, the prospect of conditions or “strings” attached to that funding is an ever-present specter. Furthermore, the fact that institutions and individuals require licenses to provide medical care also raises these possibilities as the brave new world of medicine poses far more moral dilemmas than anticipated even a brief time ago.

This has led many institutions and individuals to refrain from various activities, believing that to do so would constitute direct or material cooperation in an evil activity. Their ability to avoid participation …

Mysterizing Religion, Marc O. Degirolami

Notre Dame Law Review Reflection

A mystery of faith is a truth of religion that escapes human understanding. The mysteries of religion are not truths that human beings happen not to know, or truths that they could know with sufficient study and application, but instead truths that they cannot know in the nature of things. In the Letter to the Colossians, St. Paul writes that as a Christian apostle, his holy office is to “bring to completion for you the word of God, the mystery hidden from ages and from generations past.” Note that Paul does not say that his task is to make everybody …

The Path Of Administrative Law Remedies, Aditya Bamzai

Notre Dame Law Review

The question whether the term “set aside” in the Administrative Procedure Act (APA) authorizes a federal court to vacate a rule universally—as opposed to setting aside the rule solely as to the plaintiffs—is a significant and contested one. This Essay traces the history of the statutory term “set aside” from its origins in the 1906 passage of the Hepburn Act to its 1946 placement in the APA. During this era, Congress repeatedly used the term “set aside” in agency review statutes. This Essay argues that, in doing so, Congress did not intend to depart from the underlying remedial framework created …

Remarks At Notre Dame Law School, Brett M. Kavanaugh

Notre Dame Law Review

During the Notre Dame Law Review’s 2023 Federal Courts Symposium, students and faculty gathered in the McCartan Courtroom in Eck Hall for a conversation with Justice Kavanaugh. Dean G. Marcus Cole moderated and fielded questions from attendees. Highlights from the event, adapted for print, are reproduced below. Questions and responses have been lightly edited for readability and clarity.

Vacatur, Nationwide Injunctions, And The Evolving Apa, Ronald M. Levin

Notre Dame Law Review

The courts’ growing use of universal or nationwide injunctions to invalidate agency rules that they find to be unlawful has given rise to concern that such injunctions circumvent dialogue among the circuits, promote forum shopping, and leave too much power in the hands of individual judges. Some scholars, joined by the Department of Justice, have argued that such judicial decisions should be limited through restrictive interpretations of the Administrative Procedure Act (APA).

This Article takes issue with these authorities. It argues that the courts’ use of the APA to vacate a rule as a whole—as opposed to merely enjoining application …

A Lack Of Uniformity, Compounded, In Immigration Law, Jill E. Family

Notre Dame Law Review

The Administrative Procedure Act (APA) is known for bringing standardization to federal agency behavior. The APA’s framework for adjudication, however, is lax and incomplete. It provides standards, but only meaningfully for formal adjudication, and Congress rarely requires agencies to follow the APA’s formal adjudication procedures. The APA, therefore, expressly allows for nonuniform adjudication in that it requires little of the informal adjudication category that makes up the lion’s share of agency adjudication.

This lack of uniformity in adjudication is prominent in immigration law. When federal agencies adjudicate whether to remove (deport) an individual from the United States, those agencies act …

Preemption Exemption: Fda-Approved Abortion Drugs After Dobbs, Jared C. Huber

Notre Dame Law Review

Dobbs v. Jackson Women’s Health Organization held that no constitutional right to abortion exists, overruling Roe v. Wade and Planned Parenthood of Southeastern Pennsylvania v. Casey. After Dobbs, states are free to regulate abortion as they see fit. Under Roe and Casey’s old regime, a state could not regulate abortion in a way that presented an “undue burden on a woman’s ability” to decide to abort. The Court handed down many cases which attempted to bring clarity to the murky standard. But the conglomeration of interpretation is now wiped away.

In Dobbs’s wake, states and the …

The “Catch-22” Of Rule 23(B)(2): Past Purchaser’S Standing To Pursue Injunctive Relief, Margarete Tompkins

Notre Dame Law Review

This Note argues that past purchasers of a product have standing to pursue injunctive relief under Rule 23(b)(2). Part I discusses class actions and the current state of caselaw on false-labeling cases. I.A discusses the history of class actions generally, as well as the differing views on the purpose of Rule 23 throughout its history. I.B then provides background on standing, both generally and in the class action context. I.C explains the existing caselaw on standing for past purchasers, illustrating the looming circuit split on the issue. Part II then begins the argument portion of this Note. II.A argues that …

The Emerging Possibility Of Religious Charter Schools: A Case Study Of Arizona And Massachusetts, Kathleen C. Ryan

Notre Dame Law Review

In July 2022, Arizona became the first state to create a universal school-choice program by passing the Empowerment Scholarship Account Program, an education savings account (ESA) for all students outside the public school system. Over the past thirty years, Arizona has expanded its school choice offerings, which includes one of the largest charter school systems in the nation. Today, students in Arizona have many choices for school, including traditional public schools, charter schools, magnet schools, secular private schools, and religious private schools. In the future, could one of those options be a religious charter school?

Justice Breyer’s dissent in Espinoza …

The Administrative Procedure Act: Failures, Successes, And Danger Ahead, Emily S. Bremer

Notre Dame Law Review

The Administrative Procedure Act (APA) is a profoundly important statute, operating as the superstatute backbone for the modern administrative state. This Essay argues that, although the APA deserves to be held in high regard, its procedural provisions have had more mixed success than is commonly acknowledged. These procedural provisions govern agency adjudication and rulemaking and, in both contexts, were designed to establish minimum procedural requirements that would apply uniformly across administrative agencies. Drawing on the extensive research that informed the APA's drafting, this Essay argues that the APA has failed to achieve its goal in adjudication, but has succeeded spectacularly …

Interpreting The Administrative Procedure Act: A Literature Review, Christopher J. Walker, Scott T. Macguidwin

Notre Dame Law Review

The modern administrative state has changed substantially since Congress enacted the Administrative Procedure Act (APA) in 1946. Yet Congress has done little to modernize the APA in those intervening seventy-seven years. That does not mean the APA has remained unchanged. Federal courts have substantially refashioned the APA’s requirements for administrative procedure and judicial review of agency action. Perhaps unsurprisingly, calls to return to either the statutory text or the original meaning (or both) have intensified in recent years. “APA originalism” projects abound.

As part of the Notre Dame Law Review’s Symposium on the History of the Administrative Procedure Act …

The Apa As A Super-Statute: Deep Compromise And Judicial Review Of Notice-And-Comment Rulemaking, William N. Eskridge Jr., John Ferejohn

Notre Dame Law Review

The Administrative Procedure Act of 1946 (APA) is a “super-statute,” creating a robust, enduring governance structure for the modern regulatory state. An emerging literature on “APA originalism” maintains that some of the judge-created rules of administrative law are inconsistent with the APA’s original public meaning and therefore illegitimate. In the context of notice-and-comment rulemaking, some academics and judges wield APA originalism as a reason to abrogate the presumption of judicial review, hard-look review of agency factual conclusions, and judicial deference to agency interpretations of law. Some of the judges who would apply original public meaning to those issues have asserted …

Due Deference: Kisor, Stinson, And The United States Sentencing Commission, Tim Steininger

Notre Dame Law Review

Under Kisor v. Wilkie, courts must defer to agencies’ interpretations of regulations when certain conditions are met. Lower courts continue to diverge, however, when it comes to the deference due the United States Sentencing Commission’s commentary. The Supreme Court has declined to come to the circuits’ aid. Commission commentary interprets its Guidelines. Guidelines are necessarily subject to the Administrative Procedure Act’s notice-and-comment requirements and congressional control; commentary is not. Given the heightened stakes inherent in sentencing, some argue that the rule of lenity should apply when a court considers deferring to commentary. This Note argues that such an approach …

Textualism And The Administrative Procedure Act, Kristin E. Hickman, Mark R. Thomson

Notre Dame Law Review

In recent years, the Supreme Court occasionally has applied a more limited approach to textualist reasoning that, if applied to the APA, could expand the perceived gulf between textualism and existing administrative law doctrine. Our purpose with this Essay is to explore the implications of this trend for APA interpretation, particularly as it might apply to agency rulemaking. We do not purport to address critics of textualism as an interpretive methodology; we speak primarily to those who are persuaded of textualism’s merits. We also will not try to resolve all the many disagreements about textualism’s variations or the APA’s meaning. …

Making Sense Of Absence: Interpreting The Apa’S Failure To Provide For Court Review Of Presidential Administration, Noah A. Rosenblum

Notre Dame Law Review

Federal governance is increasingly characterized by presidential direction of administration. Yet the main statute that governs court review of administrative action, the Administrative Procedure Act, has strikingly little to say about the President.

This Essay seeks to make sense of this absence. It uses a brief survey of historical materials from the new Bremer-Kovacs Collection to sound the depths of the Administrative Procedure Act’s silence on the President. It then seeks to explain this omission by reference to contemporaneous discussions of the place of the president in the administrative state. The Essay hypothesizes that, at the time, the presidency was …

Movement Administrative Procedure, Evan D. Bernick

Notre Dame Law Review

On April 4, 1946, The Potters Herald, a Thursday weekly dedicated to labor and union news, published an editorial warning readers of pending legislation “which may seriously affect labor” despite not containing a “single word about labor” in its text. This legislation would empower “anti-labor judges” to overturn decisions by the National Labor Relations Board. Despite its neutral appearance, it was in reality designed to “kick [labor and the NLRB] in the teeth” and would result in “a field day for the corporation lawyers.”

The complained-of legislation was the Administrative Procedure Act of 1946 (APA). From today’s vantage point, …

Table Of Contents

Journal of Legislation

No abstract provided.

Charter Schools: A Missed Opportunity To Improve Education Through Innovation, Maria Chiara Parisi

Journal of Legislation

The U.S. education system, unlike other fields, has failed to encourage and learn from innovation. Charter schools—publicly-funded schools with the freedom to develop innovative practices—offered an opportunity to address the education system’s resistance to change. The hope was that charter schools could serve as laboratories of innovation for new school models that traditional public schools across the country could later adopt.

Despite these good intentions, the charter school movement has not resulted in the change early advocates hoped for. Charter schools often recycle old practices instead of experimenting with new ones. And when a charter school does develop a successful …

A Federal Legislative Proposal To Address The Demise Of The Bivens Remedy, Henry Rose

Journal of Legislation

No abstract provided.

Curtailing Coercion Of Children: Reforming Custodial Interrogations Of Juveniles, K'Reisa Cox

Journal of Legislation

No abstract provided.