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Notre Dame Law School

2017

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Articles 1 - 30 of 198

Full-Text Articles in Law

Mmu: 12/11/17–12/17/17, Notre Dame Law School Dec 2017

Mmu: 12/11/17–12/17/17, Notre Dame Law School

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.


Moving Beyond Lassiter: The Need For A Federal Statutory Right To Counsel For Parents In Child Welfare Cases, Vivek S. Sankaran Dec 2017

Moving Beyond Lassiter: The Need For A Federal Statutory Right To Counsel For Parents In Child Welfare Cases, Vivek S. Sankaran

Journal of Legislation

No abstract provided.


Baking Common Sense Into The Ferpa Cake: How To Meaningfully Protect Student Rights And The Public Interest, Zach Greenberg, Adam Goldstein Dec 2017

Baking Common Sense Into The Ferpa Cake: How To Meaningfully Protect Student Rights And The Public Interest, Zach Greenberg, Adam Goldstein

Journal of Legislation

No abstract provided.


Mental Health Crisis In Maryland: A Lack Of Hospital Beds For The Mentally Ill Presents Maryland Legislature With Concerns About The Legality And Practicality Of Detainment, Ryan D. Konstanzer Dec 2017

Mental Health Crisis In Maryland: A Lack Of Hospital Beds For The Mentally Ill Presents Maryland Legislature With Concerns About The Legality And Practicality Of Detainment, Ryan D. Konstanzer

Journal of Legislation

No abstract provided.


Chevron, And Beyond The Infinite: The Judicial And Legislative Challenges To The Administrative State, Shane Labarge Dec 2017

Chevron, And Beyond The Infinite: The Judicial And Legislative Challenges To The Administrative State, Shane Labarge

Journal of Legislation

No abstract provided.


A New Deal Approach To Statutory Interpretation: Selected Cases Authored By Justice Robert Jackson, Charles Patrick Thomas Dec 2017

A New Deal Approach To Statutory Interpretation: Selected Cases Authored By Justice Robert Jackson, Charles Patrick Thomas

Journal of Legislation

No abstract provided.


The Senate Blue-Slip Process As It Bears On Proposals To Split The Ninth Circuit, Wyatt Kozinski Dec 2017

The Senate Blue-Slip Process As It Bears On Proposals To Split The Ninth Circuit, Wyatt Kozinski

Journal of Legislation

No abstract provided.


Mmu: 12/04/17–12/10/17, Notre Dame Law School Dec 2017

Mmu: 12/04/17–12/10/17, Notre Dame Law School

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: 11/27/17–12/03/17, Notre Dame Law School Nov 2017

Mmu: 11/27/17–12/03/17, Notre Dame Law School

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: 11/20/17–11/26/17, Notre Dame Law School Nov 2017

Mmu: 11/20/17–11/26/17, Notre Dame Law School

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: 11/13/17–11/19/17, Notre Dame Law School Nov 2017

Mmu: 11/13/17–11/19/17, Notre Dame Law School

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 11/03/17–11/19/17, Notre Dame Law School Nov 2017

Mmu 11/03/17–11/19/17, Notre Dame Law School

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.


Courting Disaster: Climate Change And The Adjudication Of Catastrophe, R. Henry Weaver, Douglas A. Kysar Nov 2017

Courting Disaster: Climate Change And The Adjudication Of Catastrophe, R. Henry Weaver, Douglas A. Kysar

Notre Dame Law Review

Do we court disaster by stretching the bounds of judicial authority to address problems of massive scale and complexity? Or does disaster lie in refusing to engage the jurisgenerative potential of courts in a domain of such vast significance? This Article examines global climate change adjudication to shed light on these questions, focusing particularly on cases that seek to invoke the norm articulation and enforcement functions of courts. The attempt to configure climate-related harms within such substantive frameworks as tort and constitutional law is fraught with analytical and practical difficulties. Yet the exercise, we argue, is essential. Against the backdrop ...


An Avoidable Conundrum: How American Indian Legislation Unnecessarily Forces Tribal Governments To Choose Between Cultural Preservation And Women's Vindication, Catherine M. Redlingshafer Nov 2017

An Avoidable Conundrum: How American Indian Legislation Unnecessarily Forces Tribal Governments To Choose Between Cultural Preservation And Women's Vindication, Catherine M. Redlingshafer

Notre Dame Law Review

This Note makes two arguments concerning the state of American Indian legislation, and then proposes an alternative. First, this Note argues that the recently enacted legislation regarding criminal justice in American Indian societies will work to encourage cultural assimilation and result in the loss of tribal traditions and autonomy. In effect, the legislation is putting tribes in an impossible position: it is unfairly coercing them to choose between (1) the preservation of their own culture and customs, and (2) the ability to prosecute those victimizing their members. Second, this Note argues that even if a tribe decides to risk its ...


Advocating A Carryover Tax Basis Regime, Richard Schmalbeck, Jay A. Soled, Kathleen Delaney Thomas Nov 2017

Advocating A Carryover Tax Basis Regime, Richard Schmalbeck, Jay A. Soled, Kathleen Delaney Thomas

Notre Dame Law Review

For close to a century, an important (but unfortunate) feature of the Internal Revenue Code has been a rule that the tax basis of any inherited asset is made equal to its fair market value at the time of the decedent’s death. Notwithstanding the substantial revenue losses associated with this rule, Congress has retained it for reasons of administrative convenience.

But from three different vantage points, pressure has been mounting to change what is commonly referred to as the “step-up in basis rule.” First, politicians and commentators have historically tied the step-up in basis rule to the estate tax ...


(Un)Common Law Protection Of Certification Marks, Michelle B. Smit Nov 2017

(Un)Common Law Protection Of Certification Marks, Michelle B. Smit

Notre Dame Law Review

Part I of this Note defines and examines the general principles of certification marks. From that foundation, Part II provides an overview of the case law on unregistered common law certification marks. Part III analyzes the reasons why abuses of certification marks would increase under a commonlaw regime and posits that certification marks, therefore, should only exist under federal law. Finally, Part IV proposes several adjustments that should be made to the current certification mark registration system in order to address existing shortcomings that affect both consumers and third-party businesses.


Fashion's Function In Intellectual Property Law, Christopher Buccafusco, Jeanne C. Fromer Nov 2017

Fashion's Function In Intellectual Property Law, Christopher Buccafusco, Jeanne C. Fromer

Notre Dame Law Review

Clothing designs can be beautiful. But they are also functional. Fashion’s dual nature sits uneasily in intellectual property law, and its treatment by copyright, trademark, and design patent laws has often been perplexing. Much of this difficulty arises from an unclear understanding of the nature of functionality in fashion design. This Article proposes a robust account of fashion’s function. It argues that aspects of garment designs are functional not only when they affect the physical or technological performance of a garment but also when they affect the perception of the wearer’s body. Generally, clothes are not designed ...


In Defense Of The Fee Simple, Katrina M. Wyman Nov 2017

In Defense Of The Fee Simple, Katrina M. Wyman

Notre Dame Law Review

Prominent economically oriented legal academics are currently arguing that the fee simple, the dominant form of private landownership in the United States, is an inefficient way for society to allocate land. They maintain that the fee simple blocks transfers of land to higher value uses because it provides property owners with a perpetual monopoly. The critics propose that landownership be reformulated to enable private actors to forcibly purchase land from other private owners, similar to the way that governments can expropriate land for public uses using eminent domain. While recognizing the significance of the critique, this Article takes issue with ...


Flint Of Outrage, Toni M. Massaro, Ellen Elizabeth Brooks Nov 2017

Flint Of Outrage, Toni M. Massaro, Ellen Elizabeth Brooks

Notre Dame Law Review

Officials replaced safe water sources with contaminated water sources for tens of thousands of people living in Flint, Michigan, from April 2014 to October 2015. Overwhelming evidence indicates that the officials knew the water was potentially harmful to residents’ health and property. This unfathomable disregard for the residents of Flint sparked national outrage and prompted criminal charges as well as multiple civil suits.

Residents’ civil claims included two strands of substantive due process: that the actions infringed residents’ fundamental liberty rights to bodily integrity and to state protection from harmful acts by third parties, and that the government actions “shocked ...


The Privatized American Family, Maxine Eichner Nov 2017

The Privatized American Family, Maxine Eichner

Notre Dame Law Review

Part I of this Article describes the privatized-family model that dominates U.S. law and policy today, as well as the negative effects this model is having in the contemporary United States. Part II turns to U.S. history, investigating the national conversation regarding the appropriate relationship among the government-market-family triad. As historian Robert Self put it, competing narratives of the place of families are “deeply etched in competing narratives of national identity,” and are fundamental to our social contract. Part II first considers the narratives that supported the rise of the twentieth-century welfare state, which regulated the market to ...


Honest Copying Practices, Joseph P. Fishman Nov 2017

Honest Copying Practices, Joseph P. Fishman

Notre Dame Law Review

One of intellectual property theory’s operating assumptions is that creating is hard while copying is easy. But it is not always so. Copies, though outwardly identical, can come from different processes, from cheap digital duplication to laborious handmade re-creation. Policymakers around the world face a choice whether such distinctions should affect liability. The two branches of intellectual property that condition liability on actual copying, copyright and trade secrecy, give different answers. Both in the United States and elsewhere, trade secrecy regimes distinguish between copying methods deemed illegitimate and those deemed legitimate, what international treaties call “honest commercial practices.” Copyright ...


Kingsley Breathes New Life Into Substantive Due Process As A Check On Abuse Of Government Power, Rosalie Berger Levinson Nov 2017

Kingsley Breathes New Life Into Substantive Due Process As A Check On Abuse Of Government Power, Rosalie Berger Levinson

Notre Dame Law Review

Part I of this Article briefly summarizes the origin and judicial development of substantive due process, focusing on the lead cases that have led appellate courts to narrowly construe the substantive due process guarantee. Part II discusses the Kingsley opinion, both the majority’s analysis and the dissent’s objection to the use of an objective reasonableness test. Part III suggests how Kingsley can be used by litigators seeking to protect pretrial detainees, not only from excessive force, but also from an official’s failure to protect or failure to care for the medical and other needs of pretrial detainees ...


There Are No Ordinary People: Christian Humanism And Christian Legal Thought, Richard W. Garnett Nov 2017

There Are No Ordinary People: Christian Humanism And Christian Legal Thought, Richard W. Garnett

Journal Articles

This short essay is a contribution to a volume celebrating a new casebook, "Christian Legal Thought: Materials and Cases", edited by Profs. Patrick McKinley Brennan and William S. Brewbaker.


Mmu: 10/30/17–11/05/17, Notre Dame Law School Oct 2017

Mmu: 10/30/17–11/05/17, Notre Dame Law School

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: 10/23/17–10/29/17, Notre Dame Law School Oct 2017

Mmu: 10/23/17–10/29/17, Notre Dame Law School

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: 10/09/17–10/15/17, Notre Dame Law School Oct 2017

Mmu: 10/09/17–10/15/17, Notre Dame Law School

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: 10/02/17–10/08/17, Notre Dame Law School Oct 2017

Mmu: 10/02/17–10/08/17, Notre Dame Law School

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.


Red Mass Invitation 2017, Notre Dame Law School Oct 2017

Red Mass Invitation 2017, Notre Dame Law School

The Red Mass

The Red Mass

  • Most Rev. Kevin C. Rhoades, Bishop of Fort Wayne-South Bend
  • Notre Dame Law School
  • Department of Political Science
  • The Interdisciplinary Program in Constitutional Studies
  • The Saint Thomas More Society of South Bend

Request the honor of your presence and that of your guests at the celebration of a Red Mass for lawyers, judges, law and political science students and civil government officials at the Basilica of the Sacred Heart on Monday, October 2, 2017 at 5:15 PM.

Following the celebration of this ancient rite, in which God’s blessing is asked on all those who serve ...


The Rank-Order Method For Appellate Subset Selection, Michael J. Hasday Oct 2017

The Rank-Order Method For Appellate Subset Selection, Michael J. Hasday

Notre Dame Law Review Online

This Essay proceeds as follows: Part I discusses the “fatal flaws” of random assignment and direct selection: outlier panels and judicial gaming, respectively. Part II introduces the rank-order method and explains how this method is superior to either random assignment or direct selection. Part III provides detailed examples of how the rank-order method works in practice. Part IV concludes.


Notre Dame Lawyer - Fall 2017, Notre Dame Law School Oct 2017

Notre Dame Lawyer - Fall 2017, Notre Dame Law School

Notre Dame Lawyer

Dean Nell Jessup Newton writes:

It is early October as I write this, and the fall semester is off to a great start. We have enrolled an outstanding group of first-year students, held a successful inaugural NDLS Homecoming Weekend, welcomed new faculty, launched some exciting new programs and, last but not least, welcomed the return of Notre Dame Lawyer magazine!