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Notre Dame Law School

2015

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Full-Text Articles in Law

Hoynes Code, The, Notre Dame Law School Dec 2015

Hoynes Code, The, Notre Dame Law School

Hoynes Code

A COMPILATION OF FACULTY RESOLUTIONS AND ADMINISTRATIVE REGULATIONS GOVERNING NOTRE DAME LAW SCHOOL

This code governs legal education at the University of Notre Dame in all programs and in all locations. Requirements for the LL.M. and J.S.D. degree are included in the appendices.


Applying Citizens United To Ordinary Corruption: With A Note On Blagojevich, Mcdonnell, And The Criminalization Of Politics, George D. Brown Dec 2015

Applying Citizens United To Ordinary Corruption: With A Note On Blagojevich, Mcdonnell, And The Criminalization Of Politics, George D. Brown

Notre Dame Law Review

Federal criminal law frequently deals with the problem of corruption in the form of purchased political influence. There appear to be two distinct bodies of federal anticorruption law: one concerning constitutional issues in the prevention of corruption through campaign finance regulation, and one addressing corruption in the form of such crimes as bribery, extortion by public officials, and gratuities to them. The latter body of law primarily presents issues of statutory construction, but it may be desirable for courts approaching these issues to have an animating theory of what corruption is and how to deal with it. At the moment ...


Judicial Candor And Extralegal Reasoning: Why Extralegal Reasons Require Legal Justifications (And No More), Eric Dean Hageman Dec 2015

Judicial Candor And Extralegal Reasoning: Why Extralegal Reasons Require Legal Justifications (And No More), Eric Dean Hageman

Notre Dame Law Review

This Note’s first Part explores two landmark Supreme Court cases, Planned Parenthood of Southeastern Pennsylvania v. Casey and NFIB, that may have been decided based on extralegal considerations. Part II describes three prominent theories of judicial candor with an eye to the results they might yield with respect to extralegal reasoning. Part III offers and defends a new, partial theory of judicial candor. This theory is that a judge who employs extralegal reasoning should omit discussion of her reliance on that reasoning and justify her decision with legal reasoning.

The first two Parts will demonstrate that there is a ...


Equal Access In Cyberspace: On Bridging The Digital Divide In Public Accommodations Coverage Through Amendment To The Americans With Disabilities Act, Laura Wolk Dec 2015

Equal Access In Cyberspace: On Bridging The Digital Divide In Public Accommodations Coverage Through Amendment To The Americans With Disabilities Act, Laura Wolk

Notre Dame Law Review

This Note will proceed in three Parts. Part I will trace the development of the case law on this issue, which has culminated in a circuit split. It will also discuss the influence of the Department of Justice (DOJ), which has not exercised its regulatory authority on the subject but which has initiated enforcement actions consistent with an interpretation that includes freestanding websites. Part II will argue, based on the text, congressional silence, and the statute’s dual principal purposes, that private commercial websites do not fall within the purview of Title III. Part III will propose that disability rights ...


The Fixation Thesis: The Role Of Historical Fact In Original Meaning, Lawrence B. Solum Dec 2015

The Fixation Thesis: The Role Of Historical Fact In Original Meaning, Lawrence B. Solum

Notre Dame Law Review

Part I begins by examining the role of the Fixation Thesis in contemporary originalist constitutional theory. The next step, in Part II, is to state the affirmative case for the Fixation Thesis. This is the heart of this Article and readers who are looking for the gist might limit themselves to the discussion here. Part III explores a variety of objections to the Fixation Thesis and clarifies the content of the thesis in light of the answers to these objections. Several theoretical views that reject (or seem to reject) the Fixation Thesis are examined in Part IV. Part V applies ...


Religion And Social Coherentism, Nelson Tebbe Dec 2015

Religion And Social Coherentism, Nelson Tebbe

Notre Dame Law Review

Today, prominent academics are questioning the very possibility of a theory of free exercise or non-establishment. They argue that judgments in the area can only be conclusory or irrational. In contrast to such skeptics, this Essay argues that decisionmaking on questions of religious freedom can be morally justified. Two arguments constitute the Essay. Part I begins by acknowledging that skepticism has power. The skeptics rightly identify some inevitable indeterminacy, but they mistakenly argue that it necessarily signals decisionmaking that is irrational or unjustified. Their critique is especially striking because the skeptics’ prudential way of working on concrete problems actually shares ...


The Origins Of Legislation, Ganesh Sitaraman Dec 2015

The Origins Of Legislation, Ganesh Sitaraman

Notre Dame Law Review

Although legislation is at the center of legal debates on statutory interpretation, administrative law, and delegation, little is known about how legislation is actually drafted. If scholars pay any attention to Congress at all, they tend to focus on what happens after legislation is introduced, ignoring how the draft came to exist in the first place. In other words, they focus on the legislative process, not the drafting process. The result is that our account of Congress, the legislative process, and the administrative state is impoverished, and debates in statutory interpretation and administrative law are incomplete. This Article seeks to ...


Hunting And The Second Amendment, Joseph Blocher Dec 2015

Hunting And The Second Amendment, Joseph Blocher

Notre Dame Law Review

Debates about the meaning and scope of the Second Amendment have traditionally focused on whether it protects the keeping and bearing of arms for self-defense, prevention of tyranny, maintenance of the militia, or some combination of those three things. But roughly half of American gun-owners identify hunting or sport shooting as their primary reason for owning a gun. And while much public rhetoric suggests that these activities fall within the scope of the Second Amendment, some of the most committed gun-rights advocates insist that the Amendment “ain’t about hunting” and that, no matter their heritage and value, such activities ...


Giving The Federal Circuit A Run For Its Money: Challenging Patents In The Ptab, Rochelle Cooper Dreyfuss Dec 2015

Giving The Federal Circuit A Run For Its Money: Challenging Patents In The Ptab, Rochelle Cooper Dreyfuss

Notre Dame Law Review

My main objective is directed at institutional questions, to help the PTO and Congress as each considers changes to the system and to gauge how well the PTAB could function to ameliorate the effect of Federal Circuit isolation and provide a basis for the court to consider new perspectives, write more persuasively, and provide better guidance. A second goal is to draw greater academic attention to the potential these procedures have for changing the patent system and to provoke discussion—outside the emerging PTAB bar—on how they ought to operate. In particular, the statute layers inter partes review in ...


A Critique Of Hobby Lobby And The Supreme Court's Hands-Off Approach To Religion, Samuel J. Levine Dec 2015

A Critique Of Hobby Lobby And The Supreme Court's Hands-Off Approach To Religion, Samuel J. Levine

Notre Dame Law Review Reflection

Part I of this Essay provides a brief overview for analyzing the Supreme Court’s hands-off approach to religious doctrine. Specifically, this Part presents a summary of problems posed by the hands-off approach, followed by a brief taxonomy of different forms of judicial inquiry into religion. This Part aims to clarify which forms of inquiry are permissible—and typically necessary—for adjudication of a case involving a religious claim, and which forms of inquiry are precluded under the hands-off doctrine. Part II of this Essay applies the hands-off framework to the Hobby Lobby decision, considering the taxonomy of forms of ...


Confusing Clarity: The Pregnancy Discrimination Act After Young V. Ups, Inc., Jessica M. Bretl Dec 2015

Confusing Clarity: The Pregnancy Discrimination Act After Young V. Ups, Inc., Jessica M. Bretl

Notre Dame Law Review Reflection

On March 25, 2015, the Supreme Court issued an opinion in Young v. UPS, Inc.—the most recent case in the Court’s pregnancy discrimination jurisprudence. Young focused on an interpretation of one clause of the Pregnancy Discrimination Act (PDA) and how that interpretation would shape claims of employment discrimination by pregnant employees seeking work accommodations. This Comment argues that the majority opinion in Young did not clarify, but only muddied the waters: the Young framework presents challenges for the lower courts tasked with applying the framework and creates uncertainty for future pregnancy discrimination litigation.

Part I of this Comment ...


Collateral Consequences And The Preventive State, Sandra G. Mayson Dec 2015

Collateral Consequences And The Preventive State, Sandra G. Mayson

Notre Dame Law Review

Approximately eight percent of adults in the United States have a felony conviction. The “collateral consequences” of criminal conviction (CCs)—legal disabilities imposed by legislatures on the basis of conviction, but not as part of the sentence—have relegated that group to permanent second-class legal status. Despite the breadth and significance of this demotion, the Constitution has provided no check; courts have almost uniformly rejected constitutional challenges to CCs. Among scholars, practitioners and mainstream media, a consensus has emerged that the courts have erred by failing to recognize CCs as a form of additional punishment. Courts should correct course by ...


The Illusive "Reasonable Person": Can Neuroscience Help The Mentally Disabled?, Ian J. Cosgrove Dec 2015

The Illusive "Reasonable Person": Can Neuroscience Help The Mentally Disabled?, Ian J. Cosgrove

Notre Dame Law Review

This Note argues that the distinction between what constitutes a physical versus a mental disability can no longer rationally be sustained. Specifically, its purpose is to show that providing an exception to the “reasonable person” standard in negligence actions for the physically disabled while withholding it for those with mental infirmities is increasingly indefensible. Part I briefly tracks the origins of the current rule in tort law that holds the mentally and physically disabled to separate standards. This discussion is purposely left short because of the breadth of scholarship tracing the standard. Part II seeks to justify, through neuroscientific brain ...


A Matter Of Trial And Error, Or Betting On Appeals, Radek Goral Dec 2015

A Matter Of Trial And Error, Or Betting On Appeals, Radek Goral

Notre Dame Law Review Reflection

Sampling from the actual portfolio of a leading third-party litigation financier, this Essay demonstrates that making systematic bets on pending appeals is a viable business model applicable to a wide range of cases. “Appellate investments” may include both consumer and commercial cases, including also public-interest actions where prevailing plaintiffs are permitted attorney’s fees—even if they themselves do not seek monetary relief. Additionally, the analyzed sample indicates that appellate funders buy both from plaintiffs and plaintiffs’ attorneys, often in the same case.

The overview of the business strategy of appellate financing contributes to a larger theme: the role and ...


The Failure Of Anti-Money Laundering Regulation: Where Is The Cost-Benefit Analysis?, Lanier Saperstein, Geoffrey Sant, Michelle Ng Dec 2015

The Failure Of Anti-Money Laundering Regulation: Where Is The Cost-Benefit Analysis?, Lanier Saperstein, Geoffrey Sant, Michelle Ng

Notre Dame Law Review Reflection

Regulators have been punishing the banks not because of any actual money laundering, but rather because the banks did not meet the regulators’ own subjective vision of the ideal anti–money laundering or counter–terrorist financing program. However, no one has attempted to show that the supposedly ideal vision of an anti–money laundering or counter–terrorist financing program would actually be more effective than the programs the banks have in place.

Even if the regulators’ ideal vision of an anti–money laundering and counter–terrorist financing program would in fact be more effective than what exists now, it is ...


Brief Of Amici Curiae Intellectual Property Law Professors In Support Of Appellees, Mark Mckenna Nov 2015

Brief Of Amici Curiae Intellectual Property Law Professors In Support Of Appellees, Mark Mckenna

Court Briefs

The District Court correctly determined that Phoenix failed to state a trademark claim because Basket Case’s activities cannot have caused any relevant confusion.1 Phoenix’s fundamental complaint is about unauthorized use of its intangible content—karaoke tracks. Under Dastar v. Twentieth Century Fox Film Corp., 539 U.S. 23 (2003), however, only confusion regarding the source of physical goods is actionable under the Lanham Act; confusion regarding the source of the karaoke tracks or their authorization is not actionable. Phoenix cannot avoid Dastar just because Basket Case creates digital copies of those tracks, as Basket Case does not ...


Mmu: 11/30/15–12/06/15, Notre Dame Law School, Student Bar Association Nov 2015

Mmu: 11/30/15–12/06/15, Notre Dame Law School, Student Bar Association

Monday Morning Update

The Monday Morning Update, or MMU as it is referred to by students, is a weekly email newsletter of news, events, and opportunities of special interest to Notre Dame Law School students.


The Catholic School Revival, Karl Zinsmeister Nov 2015

The Catholic School Revival, Karl Zinsmeister

NDLS in the News

No abstract provided.


Mmu: 11/22/15–11/28/15, Notre Dame Law School, Student Bar Association Nov 2015

Mmu: 11/22/15–11/28/15, Notre Dame Law School, Student Bar Association

Monday Morning Update

The Monday Morning Update, or MMU as it is referred to by students, is a weekly email newsletter of news, events, and opportunities of special interest to Notre Dame Law School students.


Ndls Update 11/17/2015, Notre Dame Law School Nov 2015

Ndls Update 11/17/2015, Notre Dame Law School

NDLS Updates

NDLS Update is a weekly email newsletter of news, events, and opportunities for Law School faculty and staff.


Ndls Update 11/09/2015, Notre Dame Law School Nov 2015

Ndls Update 11/09/2015, Notre Dame Law School

NDLS Updates

NDLS Update is a weekly email newsletter of news, events, and opportunities for Law School faculty and staff.


Mmu: 11/16/15–11/22/15, Notre Dame Law School, Student Bar Association Nov 2015

Mmu: 11/16/15–11/22/15, Notre Dame Law School, Student Bar Association

Monday Morning Update

The Monday Morning Update, or MMU as it is referred to by students, is a weekly email newsletter of news, events, and opportunities of special interest to Notre Dame Law School students.


Mmu: 11/09/15–11/15/15, Notre Dame Law School, Student Bar Association Nov 2015

Mmu: 11/09/15–11/15/15, Notre Dame Law School, Student Bar Association

Monday Morning Update

The Monday Morning Update, or MMU as it is referred to by students, is a weekly email newsletter of news, events, and opportunities of special interest to Notre Dame Law School students.


Bruce Huber Was A Guest On Npr's The Weekend Show, "Environmentalists Celebrate Keystone Xl Decision", Bruce R. Huber Nov 2015

Bruce Huber Was A Guest On Npr's The Weekend Show, "Environmentalists Celebrate Keystone Xl Decision", Bruce R. Huber

NDLS in the News

Environmental groups and activists are celebrating President Obama's decision to reject the Keystone XL Pipeline plan, but some people say that the Keystone decision is a symbolic one.


Bruce Huber Was A Guest On Npr's All Things Considered, "What The Keystone Xl Pipeline Decision Actually Means", Bruce R. Huber Nov 2015

Bruce Huber Was A Guest On Npr's All Things Considered, "What The Keystone Xl Pipeline Decision Actually Means", Bruce R. Huber

NDLS in the News

President Obama has rejected the application to complete the Keystone XL pipeline. Bruce Huber, professor of energy law at the University of Notre Dame, talks about the Keystone pipeline decision.


The Legal Landscape Of Parental-Choice Policy, Nicole Stelle Garnett Nov 2015

The Legal Landscape Of Parental-Choice Policy, Nicole Stelle Garnett

Journal Articles

Private school choice programs raise important legal questions regarding students’ rights to an education, parents’ rights to choose their children’s schools, state constitutions, race and disability, and religious liberty.


Ndls Update 11/03/2015, Notre Dame Law School Nov 2015

Ndls Update 11/03/2015, Notre Dame Law School

NDLS Updates

NDLS Update is a weekly email newsletter of news, events, and opportunities for Law School faculty and staff.


Mmu: 11/02/15–11/08/15, Notre Dame Law School, Student Bar Association Nov 2015

Mmu: 11/02/15–11/08/15, Notre Dame Law School, Student Bar Association

Monday Morning Update

The Monday Morning Update, or MMU as it is referred to by students, is a weekly email newsletter of news, events, and opportunities of special interest to Notre Dame Law School students.


Jimmy Gurule Delivered The Opening Address At The Asian Banker Conference In Singapore, Jimmy Gurule Oct 2015

Jimmy Gurule Delivered The Opening Address At The Asian Banker Conference In Singapore, Jimmy Gurule

NDLS in the News

The Asian Banker Financial Crime 360: Preventing Financial Crime and Preempting Crises with Superior Compliance Capabilities conference in Singapore news release.

Professor Gurule's flight was cancelled because of the snow storm and he had to deliver his address via Skype.


Revising The U.S. Government’S Post-9/11 Counter-Terrorist Financing Strategy Directed At Al Qaeda To Target The Funding Of Isis, Jimmy Gurule Oct 2015

Revising The U.S. Government’S Post-9/11 Counter-Terrorist Financing Strategy Directed At Al Qaeda To Target The Funding Of Isis, Jimmy Gurule

Faculty Lectures and Presentations

Comparative and International Aspects of Criminal and Terrorism Funding

October 26-27, 2015

University of Tilburg, Tilburg, The Netherlands

The conference was attended by speakers and legal scholars from approximately 20 countries.

Building on the success of our previous events in Manchester and London, this final conference in the ‘Dirty Assets’ series explores comparative and international aspects of criminal and terrorism finances (both within and outwith the EU). This AHRC-funded event brings together leading practitioners, policymakers, and academics to consider challenges and opportunities for the anti-assets strategy, and to identify research needs and future directions. With contributions from law, criminology, political ...