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Notre Dame Law Review

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Full-Text Articles in Law

Extremist Speech, Compelled Conformity, And Censorship Creep, Danielle Keats Citron Mar 2018

Extremist Speech, Compelled Conformity, And Censorship Creep, Danielle Keats Citron

Notre Dame Law Review

Silicon Valley has long been viewed as a full-throated champion of First Amendment values. The dominant online platforms, however, have recently adopted speech policies and processes that depart from the U.S. model. In an agreement with the European Commission, the dominant tech companies have pledged to respond to reports of hate speech within twenty-four hours, a hasty process that may trade valuable expression for speedy results. Plans have been announced for an industry database that will allow the same companies to share hashed images of banned extremist content for review and removal elsewhere. These changes are less the result ...


Computationally Assisted Regulatory Participation, Michael A. Livermore, Vladimir Eidelman, Brian Grom Mar 2018

Computationally Assisted Regulatory Participation, Michael A. Livermore, Vladimir Eidelman, Brian Grom

Notre Dame Law Review

With the increased politicization of agency rulemaking and the reduced cost of participating in the notice-and-comment rulemaking process, administrative agencies have, in recent years, found themselves deluged in a flood of public comments. In this Article, we argue that this deluge presents both challenges and opportunities, and we explore how advances in natural language processing technologies can help agencies address the challenges and take advantage of the opportunities created by the recent growth of public participation in the regulatory process. We also examine how scholars of public bureaucracies can use this important new publicly available data to better understand how ...


Solitary Troubles, Alexander A. Reinert Mar 2018

Solitary Troubles, Alexander A. Reinert

Notre Dame Law Review

Solitary confinement is one of the most severe forms of punishment that can be inflicted on human beings. In recent years, the use of extreme isolation in our prisons and jails has been questioned by correctional officials, medical experts, and reform advocates alike. Yet for nearly the entirety of American history, judicial regulation of the practice has been extremely limited. This Article explains why judges hesitate to question the use of solitary confinement, while also providing a path forward for greater scrutiny of the practice.


Regulating Complacency: Human Limitations And Legal Efficacy, Steven L. Schwarcz Mar 2018

Regulating Complacency: Human Limitations And Legal Efficacy, Steven L. Schwarcz

Notre Dame Law Review

This Article examines how insights into limited human rationality can improve financial regulation. The Article identifies four categories of limitations—herd behavior, cognitive biases, overreliance on heuristics, and a proclivity to panic—that undermine the perfect-market regulatory assumptions that parties have full information and will act in their rational self-interest. The Article then analyzes how insights into these limitations can be used to correct resulting market failures. Requiring more robust disclosure and due diligence, for example, can help to reduce reliance on misleading information cascades that motivate herd behavior. Debiasing through law, such as requiring more specific, poignant, and concrete ...


Progressive Genetic Ownership, Jessica L. Roberts Mar 2018

Progressive Genetic Ownership, Jessica L. Roberts

Notre Dame Law Review

Recently, property law scholars have challenged neoclassical economic theory as the primary lens for understanding ownership. As an alternative to the all-too-familiar concepts of welfarism, rational choice theory, and cost-benefit analysis, they offer “progressive property,” a school of thought grounded in value pluralism, communitarianism, and redistribution. To date, much of the progressive property literature has focused exclusively on land use. This Article tests the versatility of this new property school by applying it to a novel context: genetic ownership. As with real property, discussions surrounding genetic ownership have been entrenched in the language of neoclassical economics. Given the proliferation of ...


The Breakdown Of International Treaties, Jide Nzelibe Mar 2018

The Breakdown Of International Treaties, Jide Nzelibe

Notre Dame Law Review

“[A] cause seldom triumphs unless somebody’s personal interest is bound up with it.” In the past few years, we have witnessed a rise in antiglobalization sentiment in which certain treaties have succumbed to domestic political backlash. But why are particular treaties susceptible to breakdown while others tend to be more resilient? Paradoxically, this Article argues that the fragility of treaties follows a peculiar logic: treaties are most vulnerable to breakdown or withdrawal if they were originally negotiated in the absence of social conflict among domestic groups. The reason is that, having been negotiated and ratified with hardly any political ...


The Canon Of Rational Basis Review, Katie R. Eyer Mar 2018

The Canon Of Rational Basis Review, Katie R. Eyer

Notre Dame Law Review

The modern constitutional law canon fundamentally misdescribes rational basis review. Through a series of errors—of omission, simplification, and recharacterization—we have largely erased a robust history of the use of rational basis review by social movements to generate constitutional change. Instead, the story the canon tells is one of dismal prospects for challengers of government action—in which rational basis review is an empty, almost meaningless form of review.

This Article suggests that far from the weak and ineffectual mechanism that most contemporary accounts suggest, rational basis review has, in the modern era, served as one of the primary ...


Qui Tam Litigation Against Government Officials: Constitutional Implications Of A Neglected History, Randy Beck Mar 2018

Qui Tam Litigation Against Government Officials: Constitutional Implications Of A Neglected History, Randy Beck

Notre Dame Law Review

The Supreme Court concluded twenty-five years ago, in Lujan v. Defenders of Wildlife, that uninjured private plaintiffs may not litigate “generalized grievances” about the legality of executive branch conduct. According to the Lujan Court, Congress lacked power to authorize suit by a plaintiff who could not establish some “particularized” injury from the challenged conduct. The Court believed litigation to require executive branch legal compliance, brought by an uninjured private party, is not a “case” or “controversy” within the Article III judicial power and impermissibly reassigns the President’s Article II responsibility to “take Care that the Laws be faithfully executed ...


Incorrigible Students: A Criminal Oxymoron?, Shannon Lewry Mar 2018

Incorrigible Students: A Criminal Oxymoron?, Shannon Lewry

Notre Dame Law Review

The Note proceeds in two Parts. The remainder of the Introduction presents a closed door: the Supreme Court’s hesitancy, to date, to find juvenile- life-without-parole sentences unconstitutional under the Eighth Amendment. After exploring the contours of the closed Door, the Introduction turns to an open window: education law. This, I argue, may be wielded to attack the lawfulness of juvenile-life-without-parole sentences on wholly nonconstitutional grounds. The Introduction concludes with remarks regarding this Note’s relevance and timeliness. Part I tracks the Note’s central argument, premise by premise, that state compulsory education laws and juvenilelife- without-parole sentences are wholly ...


The Ambiguous Ambiguity Inquiry: Seeking To Clarify Judicial Determinations Of Clarity Versus Ambiguity In Statutory Interpretation, Meredith A. Holland Mar 2018

The Ambiguous Ambiguity Inquiry: Seeking To Clarify Judicial Determinations Of Clarity Versus Ambiguity In Statutory Interpretation, Meredith A. Holland

Notre Dame Law Review

This Note will apply Judge Kavanaugh’s proposed mechanism to the interpretation of the Title IX prohibition of discrimination on the basis of sex. Part I discusses recent cases decided by the Roberts Court that demonstrate the difficulties with the current jurisprudential approach to the clarity versus ambiguity determination. Part II explores Judge Kavanaugh’s recent proposal for reducing threshold findings of ambiguity. Part III considers various interpretive methods and applies Judge Kavanaugh’s proposal in the context of Title IX. Finally, this Note concludes that Judge Kavanaugh’s approach, while most dramatically transforming the purposivist approach, also has consequences ...


Internet Safe Harbors And The Transformation Of Copyright Law, Matthew Sag Jan 2018

Internet Safe Harbors And The Transformation Of Copyright Law, Matthew Sag

Notre Dame Law Review

This Article explores the potential displacement of substantive copyright law in the increasingly important online environment. In 1998, Congress enacted a system of intermediary safe harbors as part of the Digital Millennium Copyright Act (DMCA). The internet safe harbors and the associated system of notice-and-takedown fundamentally changed the incentives of platforms, users, and rightsholders in relation to claims of copyright infringement. These different incentives interact to yield a functional balance of copyright online that diverges markedly from the experience of copyright law in traditional media environments. More recently, private agreements between rightsholders and large commercial internet platforms have been made ...


Active Judging And Access To Justice, Anna E. Carpenter Jan 2018

Active Judging And Access To Justice, Anna E. Carpenter

Notre Dame Law Review

“Being a good judge in this environment means unlearning what you learned in law school about what a judge is supposed to do. Fairness is doing things a federal judge would never do.”

Active judging, where judges step away from the traditional, passive role to assist those without counsel, is a central feature of recent proposals aimed at solving the pro se crisis in America’s state civil courts. Despite growing support for active judging as an access to justice intervention, we know little, empirically, about how judges interact with pro se parties as a general matter, and even less ...


The Nondelegation Doctrine: Alive And Well, Jason Iuliano, Keith E. Whittington Jan 2018

The Nondelegation Doctrine: Alive And Well, Jason Iuliano, Keith E. Whittington

Notre Dame Law Review

The nondelegation doctrine is dead. It is difficult to think of a more frequently repeated or widely accepted legal conclusion. For generations, scholars have maintained that the doctrine was cast aside by the New Deal Court and is now nothing more than a historical curiosity. In this Article, we argue that the conventional wisdom is mistaken in an important respect.

Drawing on an original dataset of more than one thousand nondelegation challenges, we find that, although the doctrine has disappeared at the federal level, it has thrived at the state level. In fact, in the decades since the New Deal ...


Trademarks And Private Environmental Governance, David E. Adelman, Graeme W. Austin Jan 2018

Trademarks And Private Environmental Governance, David E. Adelman, Graeme W. Austin

Notre Dame Law Review

This Article examines the relationship between private environmental governance and trademark law. Over the past two decades, green trademarks and other forms of private governance have flourished in tandem with the retreat from national and international public law modalities of environmental regulation. The rising political opposition to environmental regulation partly accounts for this change. Also relevant is the rise of globalization, which due to jurisdictional and trade constraints has diminished the effective regulatory control countries have over products sold in their markets.

Private environmental governance is premised on consumers “voting with their wallets” by selecting products that reflect not just ...


Structural Change In State Postconviction Review, Lee Kovarsky Jan 2018

Structural Change In State Postconviction Review, Lee Kovarsky

Notre Dame Law Review

This Article's ultimate objectives are to diagnose, predict, and evaluate structural change in State PCR. Because claims and evidence necessary to enforce constitutional rights increasingly require a meaningful collateral forum, and because the federal collateral forum is so limited, State PCR is, for lack of a better term, the Last Man Standing. That status is not lost on the Supreme Court and lower federal judges, who are adapting available legal rules to try to improve the efficacy of collateral process in state court. And such adaptation does add to the bite of criminal-process rights, the underenforcement of which is ...


Disciplining Deference: Strengthening The Role Of The Federal Courts In The National Security Realm, Dominic X. Barceleau Jan 2018

Disciplining Deference: Strengthening The Role Of The Federal Courts In The National Security Realm, Dominic X. Barceleau

Notre Dame Law Review

This Note will argue that federal courts need to be more “disciplined” in their deference determinations in order to effectively check the Executive’s power. Part I will look at the Constitution and its allocation of foreign relations powers for evidence of the appropriate amount of deference that ought to be shown by the judiciary. While the text of the Constitution is largely silent on this question, Part I will show that this silence does not exclude a role for the judiciary in foreign affairs. Part II will proceed to discuss several important Supreme Court decisions that have helped to ...


Michigan's Religious Exemption For Faith-Based Adoption Agencies: State-Sanctioned Discrimination Or Guardian Of Religious Liberty?, Allison L. Mcqueen Jan 2018

Michigan's Religious Exemption For Faith-Based Adoption Agencies: State-Sanctioned Discrimination Or Guardian Of Religious Liberty?, Allison L. Mcqueen

Notre Dame Law Review

Historically, most of the legal obstacles faced by gay couples hoping to expand their families through adoption stemmed from prohibitions on marriage. That was until Obergefell. Barriers to same-sex adoption have been steadily falling over the past decade, and, in the wake of the Supreme Court’s decision, married couples are now able to adopt in every state. However, there remains one pressing barrier to adoption for same-sex couples: “conscience clause” adoption laws enacted to allow faith-based adoption agencies to turn away prospective parents whose sexuality conflicts with their “sincerely held religious beliefs.” Though Ms. DeBoer and Ms. Rowse successfully ...


Valuing Residual Goodwill After Trademark Forfeiture, Jake Linford Jan 2018

Valuing Residual Goodwill After Trademark Forfeiture, Jake Linford

Notre Dame Law Review

Trademarks contribute to an efficient market by helping consumers find products they like from sources they trust. This information-transmission function of trademarks can be upset if the law fails to reflect both how trademark owners communicate through marks and how consumers understand and use them. But many of trademark law’s forfeiture mechanisms (the ways a trademark can lose protection) ignore or discount consumer perception. This failure threatens not only to increase consumer search costs and consumer confusion, but also to distort markets.

For example, trademark protection may be forfeited when the mark owner interrupts or abandons use, even though ...


Precedent And Preclusion, Alan M. Trammell Jan 2018

Precedent And Preclusion, Alan M. Trammell

Notre Dame Law Review

Preclusion rules prevent parties from revisiting matters that they have already litigated. A corollary of that principle is that preclusion usually does not apply to nonparties, who have not yet benefited from their own “day in court.” But precedent works the other way around. Binding precedent applies to litigants in a future case, even those who never had an opportunity to participate in the precedent-creating lawsuit. The doctrines once operated in distinct spheres, but today they often govern the same questions and apply under the same circumstances, yet to achieve opposite ends. Why, then, does due process promise someone a ...


Convicting With Reasonable Doubt: An Evidentiary Theory Of Criminal Law, Doron Teichman Jan 2018

Convicting With Reasonable Doubt: An Evidentiary Theory Of Criminal Law, Doron Teichman

Notre Dame Law Review

This Article presents an evidentiary theory of substantive criminal law according to which sanctions are distributed in proportion to the strength of the evidence mounted against the defendant. It highlights the potential advantages associated with grading penalties in proportion to the probability of wrongdoing and situates this claim within both consequentialist and deontological theories of punishment. Building on this analysis, the Article reviews the doctrinal tools used to achieve the goal of evidentiary grading of sanctions and shows that key factors in criminal law are geared towards dealing with evidentiary uncertainty. Finally, the Article explores the underlying logic of the ...


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 ...


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 ...


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 ...


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 ...


(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 ...


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 ...


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 ...


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 ...