Law Commons^™

Inside The 'Constitutional Revolution' Of 1937, Barry Cushman

Journal Articles

The nature and sources of the New Deal Constitutional Revolution are among the most discussed and debated subjects in constitutional historiography. Scholars have reached significantly divergent conclusions concerning how best to understand the meaning and the causes of constitutional decisions rendered by the Supreme Court under Chief Justice Charles Evans Hughes. Though recent years have witnessed certain refinements in scholarly understandings of various dimensions of the phenomenon, the relevant documentary record seemed to have been rather thoroughly explored. Recently, however, a remarkably instructive set of primary sources has become available. For many years, the docket books kept by a number …

A Humble Justice, Marah S. Mcleod

Journal Articles

Media and scholarly critics often claim that Justice Thomas's criminal law opinions reflect intentional cruelty or callousness, and dismiss his opinions without engaging seriously with their substance.
This Essay contends that judicial humility is a far more plausible explanation for Justice Thomas's criminal case decisions. If observers recognize that his approach to the law is guided by humility, rather than his own cruel or callous views, they will be more likely to consider the substance of his opinions and will benefit from wrestling with his challenging jurisprudential and historical perspective - even if they do not agree with the conclusions …

From A Muddle To A Mudslide: Murr V. Wisconsin, Nicole Stelle Garnett

Journal Articles

This article analyzes the U.S. Supreme Court's most-recent regulatory takings decision, Murr v. Wisconsin, concluding that the decision further muddies the takings waters and threatens to undermine the already-limited protection of private property provided by the Fifth Amendment's Takings Clause.

Freeing The City To Compete, James J. Kelly Jr.

Journal Articles

In this paper, I examine how the rights of owners, lenders and residents threaten the functioning of real markets in distressed urban neighborhoods, perpetuating the pall that vacant and abandoned houses cast over their future. Even a single abandoned house can present an example of how the rights of several stakeholders create a form of gridlock known as anticommons, which isolates that property from a potentially transformative transfer of title. In addition to this legal anticommons, some neighborhoods are so beset by vacant property problems that they require coordination of investment that is frustrated by both the multiplicity of private …

Brexit, Art Loans And Contracts Left In Limbo, Geoffrey Bennett

Journal Articles

It may not be as widely appreciated as it should be that loans of art within the European Union (the EU) are not simply a fortuitous product of the fact that the EU has led to closer relationships, both economic and political, between its Member States. It could be said that they are integral to the cultural policy of the EU. Article 167 of the Lisbon Treaty states that: "The Union shall contribute to the flowering of the cultures of the Member States while respecting their national and regional diversity..." and that action shall be aimed at supporting, "non-commercial cultural …

Chickens And Eggs: Does Custody Move Support, Or Vise-Versa?, Margaret Brinig

Journal Articles

Most, if not all, of the theoretical work on child support presupposes that it becomes an issue only when couples separate, that is, that the flow moves between custody and child support and that the duty to make monetary payments is typically owed by the noncustodial parent. (I realize, of course, that there can be issues regarding the identity of the payor and that there are criminal and civil actions possible when parents refuse or neglect to provide support to dependent children.) Some empirical work confirms the relationship between the two. For example, Judith Seltzer, Weiss and Willis, and Brinig …

Citizens Abroad And Social Cohesion At Home: Refocusing A Cross-Border Tax Policy Debate, Michael Kirsch

Journal Articles

Modern developments raise significant questions about the future importance (or non-importance) of formal citizenship status. For example, while many have interpreted the European Union project, with its emphasis on the free movement of individuals, as portending the decreasing relevance of nationality, recent developments, such as the “Brexit” vote, suggest that national identity remains an important factor for many individuals. While much of the public debate over citizenship focuses on areas, such as immigration, that are more obviously tied to formal citizenship status, this debate also impacts cross-border tax policy.

Over the past decade, several scholars have addressed the use of …

The Value Of Accuracy In The Patent System, Stephen Yelderman

Journal Articles

Because it must rely on imperfect information, the patent system will inevitably make mistakes. To determine how the system ought to err in cases of uncertainty—and whether a given mistake is worth correcting—scholars have composed a simple picture of the consequences of error in either direction. On the one hand, erroneous patent awards impose unjustified costs. On the other hand, erroneous patent denials discourage successful inventors and reduce incentives to create in the future. The result is an essentially indeterminate balancing, in which policies of overly liberal awards drive up costs, and policies of overly cautious awards drive down incentives. …

Justice Scalia's Rule Of Law And Law Of Takings, Nicole Stelle Garnett

Journal Articles

This short essay reviews the regulatory takings legacy of Justice Antonin Scalia, evaluating both its impact on the Supreme Court's takings canon and its consistency with his stated jurisprudential principles.

Countering The Majoritarian Difficulty, Amy Coney Barrett

Journal Articles

In Our Republican Constitution, Randy Barnett argues that the United States Constitution rests on a foundation of individual rather than collective popular sovereignty. Grounding the legitimacy of the government in the authority given it by each individual rather than by the People as a whole echoes the thesis, advanced in Barnett’s prior work, that the government must justify incursions upon individual liberty. If the People as a body are sovereign and the Constitution is designed to facilitate democratic self-governance, legislation is presumptively legitimate because it represents the sovereign will of the democratic majority. If the individual is sovereign, by contrast, …

Religious Freedom And Recycled Tires: The Meaning And Implications Of Trinity Lutheran, Richard W. Garnett, Jackson C. Blais

Journal Articles

The Supreme Court's decision in Trinity Lutheran clearly affirmed a First Amendment rule against anti-religious discrimination. At the same time, it raised or left open a number of important and interesting questions about education reform, the relevance of anti-Catholic bias to states' so-called Blaine Amendments, and the sharpening tension between religious freedom and the application of antidiscrimination laws.

Adultery: Trust And Children, Margaret F. Brinig

Journal Articles

Deborah Rhode writes that while adultery is admittedly not good, it should not be criminal. She argues that it should not generate a tort action either, because the original purposes for which the torts of alienation of affections and criminal conversation come from a time with quite different views about marriage and gender, while no-fault and speedy divorce today give adequate remedies to the wronged spouse. Further, adultery should not affect employment (as a politician or in the military) unless it directly impacts job performance.

My own reluctance to disengage adultery and law stems from the seriousness of adultery. First, …

Constraining Monitors, Veronica Root

Journal Articles

Monitors oversee remediation efforts at dozens, if not hundreds, of institutions that are guilty of misconduct. The remediation efforts that the monitors of today engage in are, in many instances, quite similar to activities that were once subject to formal court oversight. But as the importance and power of monitors has increased, the court’s oversight of monitors and the agreements that most often result in monitorships has, at best, been severely diminished and, at worst, vanished altogether.

The lack of regulation governing monitors is well documented; yet, the academic literature on monitorships to date has largely taken the state of …

Truth And Politics: A Symposium On Peter Simpson's Political Illiberalism: A Defense Of Freedom., Gerard V. Bradley

Journal Articles

There is no more important question in thinking about life-and actually living-in political community than whether it is to be permeated by, and purposefully oriented around, the main truths about human flourishing. It is at least paradoxical that, precisely when the state and its law and political life are shaping people's lives more and more, the professed roots of all this influence are growing thinner, more shallow. Lawmakers who profess and in many cases even think they should be "neutral" about values are more involved with how persons' lives go than, perhaps, ever before.

Of course, any community which has …

Racial And Gender Justice In The Child Welfare And Child Support Systems, Margaret Brinig

Journal Articles

While divorcing couples in the United States have been studied for many years, separating unmarried couples and their children have proven more difficult to analyze. Recently there have been successful longitudinal ethnographic and survey-based studies. This piece uses documents from a single Indiana county’s unified family court (called the Probate Court) to trace the effects of race and gender on unmarried families, beginning with a sample of 386 children for whom paternity petitions were brought in four months of 2008. It confirms prior theoretical work on racial differences in noncustodial parenting and poses new questions about how incarceration and gender …

Coordinating Compliance Incentives, Veronica Root

Journal Articles

In today’s regulatory environment, a corporation engaged in wrongdoing can be sure of one thing: regulators will point to an ineffective compliance program as a key cause of institutional misconduct. The explosion in the importance of compliance is unsurprising given the emphasis that governmental actors — from the Department of Justice, to the Securities and Exchange Commission, to even the Commerce Department — place on the need for institutions to adopt “effective compliance programs.” The governmental actors that demand effective compliance programs, however, have narrow scopes of authority. DOJ Fraud handles violations of the Foreign Corrupt Practices Act, while the …

What's In, And What's Out: How Ip's Boundary Rules Shape Innovation, Mark Mckenna, Christopher J. Sprigman

Journal Articles

Intellectual property law sorts subject matter into a variety of different regimes, each with different terms of protection and different rules of protectability, infringement, and defenses. For that sorting to be effective, IP needs principles to distinguish the subject matter of each system. This paper focuses on one of the most important aspects of border-drawing that our IP system undertakes — identifying “useful” subject matter.

This aspect is critical because our IP system gives utility patent law pride of place and draws the boundaries of the other doctrines in large part to respect utility patent’s supremacy. Yet IP law’s sense …

Empowering Courts In Corporate Law, Julian Velasco

Journal Articles

Corporate law recognizes the twin duties of care and loyalty, but treats the two very differently. Cases involving the duty of care receive very deferential review under the business judgment rule, if any at all, in light of exculpation provisions in corporate charters, while cases involving the duty of loyalty receive more demanding review under the entire fairness test. A fiduciary has the duty to act in the interests of the beneficiary in all relevant respects." In other words, both care and loyalty, as well as any other fiduciary duties that exist, are all merely aspects of the one overarching …

Criminal Trademark Enforcement And The Problem Of Inevitable Creep, Mark Mckenna

Journal Articles

This Article, delivered as the 2017 Oldham Lecture at the University of Akron School of Law, focuses on the federal Trademark Counterfeiting Act (TCA), the primary source of federal criminal trademark sanctions. That statute was intended to increase the penalties associated with the most egregious form of trademark infringement — use of an identical mark for goods identical to those for which the mark is registered and in a context in which the use is likely to deceive consumers about the actual source of the counterfeiter’s goods. The TCA was intended to ratchet up the penalties associated with counterfeiting, but …

Multiple Chancellors: Reforming The National Injunction, Samuel L. Bray

Journal Articles

In several recent high-profile cases, federal district judges have issued injunctions that apply across the nation, controlling the defendants’ behavior with respect to nonparties. This Article analyzes the scope of injunctions to restrain the enforcement of a federal statute, regulation, or order. This analysis shows the consequences of the national injunction: more forum shopping, worse judicial decisionmaking, a risk of conflicting injunctions, and tension with other doctrines and practices of the federal courts.

This Article shows that the national injunction is a recent development in the history of equity. There was a structural shift at the Founding from a single-chancellor …

Aba-Bloomberg Bna Awards 2013–2017, Notre Dame Law School

Student, Faculty, and Staff Awards

For excellence in the study of health law.

For excellence in the study of intellectual property.

American Bar Association Section Of Labor And Employment Law And The Bureau Of National Affairs, Inc. Award 2013–2017, Notre Dame Law School

Student, Faculty, and Staff Awards

For excellence in the study of labor and employment law.

Ll.B. To J.D. At Notre Dame Law School, Beth Gelroth Klein

About the Law School

“At the February convocation ceremony celebrating the centennial of the ND Law School, members of the ’33 class received the degree of Doctor of Jurisprudence, retroactive to the date of the recipient’s bachelor of laws degree.” (Lists 19 individuals.) Notre Dame Alumnus, vol. 47, no. 5, July-August 1969. p. 31.

Ending The Excessive Use Of Force At Home And Abroad, Mary Ellen O'Connell

Journal Articles

In the mid-1980s the American Society of International Law (ASIL) launched an initiative to engage more women and minority members in the Society and international law more generally.' Professor Henry Richardson was there, encouraging all of the new aspirants, including me. He is still doing that, and this essay in his honor is an expression of gratitude, admiration, and affection. It develops themes Hank and I have both pursued for decades: human rights, peace and non-violence, and the promotion of international law and ASIL.

Planning For Density: Promises, Perils And A Paradox, Nicole Stelle Garnett

Journal Articles

This article, which was delivered as the 2017 Environmental Distinguished Lecture at Florida State University, discussed the promises, perils and an unappreciated paradox of current efforts to use land use policy to densify and urbanize American communities.