Law Commons^™

Law Is In The Bin: New Frontiers In Conceptual Art And Legal Liability, Katelyn E. Doering

Notre Dame Law Review

Part I of this Note begins with a discussion of who Banksy is and why his work is important to this legal debate, finishing with a detailed description of the features of conceptual art that are relevant for legal analysis and an argument that the shredding stunt—the event itself, not the partially shredded canvas—is a work of conceptual art. Part II argues that the unique features of the shredding stunt, and of future works in the same artistic category, present a novel legal problem both for artists and for buyers. This novel problem is explored through the lens of …

Uncertain Terms, Leah R. Fowler, Jim Hawkins, Jessica L. Roberts

Notre Dame Law Review

Health apps collect massive amounts of sensitive consumer data, including information about users’ reproductive lives, mental health, and genetics. As a result, consumers in this industry may shop for privacy terms when they select a product. Yet our research reveals that many digital health tech companies reserve the right to unilaterally amend their terms of service and their privacy policies. This ability to make one-sided changes undermines the market for privacy, leaving users vulnerable. Unfortunately, the current law generally tolerates unilateral amendments, despite fairness and efficiency concerns. We therefore propose legislative, regulatory, and judicial solutions to better protect consumers of …

Forum Selection Clauses, Non-Signatories, And Personal Jurisdiction, John F. Coyle, Robin J. Effron

Notre Dame Law Review

Who is bound by a forum selection clause? At first glance, the answer to this question may seem obvious. It is black letter law that a person cannot be bound to an agreement without her consent. In recent years, however, courts have not followed this rule with respect to forum selection clauses. Instead, they routinely enforce these clauses against individuals who never signed the contract containing the clause. Courts justify this practice on the grounds that it promotes litigation efficiency by bringing all of the litigants together in the chosen forum. There are, however, problems with enforcing forum selection clauses …

Delegation, Administration, And Improvisation, Kevin Arlyck

Notre Dame Law Review

Nondelegation originalism is having its moment. Recent Supreme Court opinions suggest that a majority of Justices may be prepared to impose strict constitutional limits on Congress’s power to delegate policymaking authority to the executive branch. In response, scholars have scoured the historical record for evidence affirming or refuting a more stringent version of nondelegation than current Supreme Court doctrine demands. Though the debate ranges widely, sharp disputes have arisen over whether a series of apparently broad Founding-era delegations defeat originalist arguments in favor of a more demanding modern doctrine. Proponents—whom I call “nondelegationists”—argue that these historical delegations can all be …

Copyright And The Creative Process, Mark Bartholomew

Notre Dame Law Review

Copyright is typically described as a mechanism for encouraging the production of creative works. On this view, copyright protection should be granted to genuinely creative works but denied to non-creative ones. Yet that is not how the law works. Instead, almost anything—from test answer sheets to instruction manuals to replicas of items in the public domain—is deemed creative and therefore eligible for copyright protection. This is the consequence of a century of copyright doctrine assuming that artistic creativity is incapable of measurement, unaffected by personal motivation, and incomprehensible to novices and experts alike. Recent neuroscientific research contradicts these assumptions. It …

Bostock Was Bogus: Textualism, Pluralism, And Title Vii, Mitchell N. Berman, Guha Krishnamurthi

Notre Dame Law Review

In Bostock v. Clayton County, one of the blockbuster cases from its 2019 Term, the Supreme Court held that federal antidiscrimination law prohibits employment discrimination on grounds of sexual orientation and gender identity. Unsurprisingly, the result won wide acclaim in the mainstream legal and popular media. Results aside, however, the reaction to Justice Neil Gorsuch’s majority opinion, which purported to ground the outcome in a textualist approach to statutory interpretation, was more mixed. The great majority of commentators, both liberal and conservative, praised Justice Gorsuch for what they deemed a careful and sophisticated—even “magnificent” and “exemplary”—application of textualist principles, …

Oversight Riders, Kevin M. Stack, Michael P. Vandenbergh

Notre Dame Law Review

Congress has a constitutionally critical duty to gather information about how the executive branch implements the powers Congress has granted it and the funds Congress has appropriated. Yet in recent years the executive branch has systematically thwarted Congress’s powers and duties of oversight. Congressional subpoenas for testimony and documents have met with blanket refusals to comply, frequently backed by advice from the Department of Justice that executive privilege justifies withholding the information. Even when Congress holds an official in contempt for failure to comply with a congressional subpoena, the Department of Justice often does not initiate criminal sanctions. As a …

The Duty Not To Continue Distributing Your Own Libels, Eugene Volokh

Notre Dame Law Review

Say something I wrote about you online (in a newspaper, a blog, or a social media page) turns out to be false and defamatory. Assume I wasn’t culpable when I first posted it, but now I’m on notice of the error.

Am I liable for defamation if I fail to remove or correct the erroneous material? Surprisingly, courts haven’t settled on an answer, and scholars haven’t focused on the question. Libel law is stuck in a time when newspapers left the publisher’s control as soon as they are printed—even though now an article or a post can be seen on …

Cancelling Capitalism?, Christina P. Skinner

Notre Dame Law Review

Grow the Pie’s defense of capitalism is a tremendous contribution, albeit one which Edmans himself downplays. While the author largely bills his work as one aiming to correct the factual record about profitmaximization— while providing pointers for managers and policymakers—Edmans reaffirms the validity and viability of corporate capitalism as an ideology that, in practice, advances human welfare.

Injecting this viewpoint into the academic debate is critically important at a time when voices of stakeholderists seem the loudest. Sociological research long ago confirmed that societal expectations (as often shaped by academic discourse) have real impact on our social systems and …

It’S A Trap: A New Economic Model Addressing American Public Education, Nikhil A. Gulati

Notre Dame Law Review

This Note will argue that, when looking at the quality of a school district, there is some theoretical threshold that determines whether the use of local property tax and zoning by a local government will be effective in increasing the quality of the locality’s schools. This theoretical threshold is conceptually akin to the basic economic idea of a poverty trap. If a locality’s schools are above this quality threshold, the corresponding local government will be able to effectively utilize property taxes and zoning to increase the quality of its schools. However, if it is below the threshold, the local government …

Libel By Omission Of Exculpatory Legal Decisions, Eugene Volokh

Notre Dame Law Review

Is it libelous to write that someone has been convicted of a crime, but to fail to mention that the conviction has been reversed? Or to write that someone has been charged, without mentioning the acquittal? The answers, it turns out, are often “yes”; this Article lays out the precedents that so conclude.

Recovering The Tort Remedy For Federal Official Wrongdoing, Gregory Sisk

Notre Dame Law Review

As the Supreme Court weakens the Bivens constitutional tort cause of action and federal officers avoid liability for unlawful behavior through qualified immunity, we should recollect the merit of the common-law tort remedy for holding the federal government accountable for official wrongdoing. For more than a century after ratification of the Constitution, federal officers who trespassed on the rights of American citizens could be held personally liable under common-law tort theories, but then routinely were indemnified by the government.

The modern Federal Tort Claims Act (FTCA) roughly replicates the original regime for official wrongdoing by imposing liability directly on the …

The Inconsistent Originalism Of Judge-Made Remedies Against Federal Officers, Stephen I. Vladeck

Notre Dame Law Review

Professor Carlos V´azquez and I have explained in depth why the Supreme Court’s evisceration of damages remedies for constitutional violations by federal officers is analytically and historically incoherent. And I have written elsewhere about the extent to which modern constitutional remedies doctrine has turned a remarkably blind eye to foundational principles of federalism—paying little more than lip service to the robust availability of common-law damages (and habeas) remedies against federal officers in state courts from the Founding through the Civil War—and, at least for damages, well into the twentieth century. I don’t mean to rehash (or relitigate) either argument here. …

A Dual System Of Justice: Financial Institutions And White-Collar Criminal Enforcement, Sebastian Bellm

Notre Dame Law Review

Proposing more severe punishment for white-collar criminals is not a new concept. While many argue for the increased prison time of white-collar offenders, others provide “a counter-perspective on the use of prison sentences.” Other areas of academic publication support the convergence of sentencing guidelines for white-collar and drug-related criminals, particularly in light of utilitarian and retributivist principles. Rather than simply recommending that white-collar criminals should be punished more, this Note proposes two distinct structural solutions that reevaluate the current policies directing the punishment of white-collar criminal conduct. Specifically, this Note argues that the Department of Justice (DOJ) should reconsider the …

Judicial Autonomy V. Executive Authority: Which Prevails In The Case Of A Postcommutation Collateral Attack?, Vincent A. Marrazzo

Notre Dame Law Review

An inmate with a commuted sentence will sometimes collaterally attack his already commuted sentence. This raises the question: Does an act of executive clemency divest the courts of authority to hear the collateral attack? In other words, does clemency moot the issues involved in the collateral attack? While multiple circuit courts have weighed in on this question, the Fourth and Sixth Circuits have developed the most robust discussions, disagreeing about whether federal courts may hear these cases. The Fourth Circuit has held that a collateral attack postcommutation is moot as the “President’s commutation order simply closes the judicial door.” In …

Lessons For Bivens And Qualified Immunity Debates From Nineteenth-Century Damages Litigation Against Federal Officers, Andrew Kent

Notre Dame Law Review

This Essay was written for a symposium marking the fiftieth anniversary of the Supreme Court’s decision in Bivens v. Six Unknown Named Agents of Federal Bureau of Narcotics. As the current Court has turned against Bivens—seemingly confining it to three specific contexts created by Bivens and two follow-on decisions in 1979 and 1980—scholars and litigants have developed a set of claims to respond to the Court’s critique. The Court now views the judicially created Bivens cause of action and remedy as a separation-of-powers foul; Congress is said to be the institution which should weigh the costs and benefits …

Going Rogue: The Supreme Court's Newfound Hostility To Policy-Based Bivens Claims, Joanna C. Schwartz, Alexander Reinert, James E. Pfander

Notre Dame Law Review

In Ziglar v. Abbasi, 137 S. Ct. 1843 (2017), the Supreme Court held that a proposed Bivens remedy was subject to an exacting special factors analysis when the claim arises in a “new context.” In Ziglar itself, the Court found the context of the plaintiffs’ claims to be “new” because, in the Court’s view, they challenged “large-scale policy decisions concerning the conditions of confinement imposed on hundreds of prisoners.” Bivens claims for damages caused by unconstitutional policies, the Court suggested, were inappropriate.

This Essay critically examines the Ziglar Court’s newfound hostility to policy-based Bivens claims. We show that an …

Was Bivens Necessary?, Ann Woolhandler, Michael G. Collins

Notre Dame Law Review

Some federal common-law skeptics have provided criteria for keeping federal common law in check. Although not specifically addressing Bivensactions, Professor Nelson has argued that when engaged in federal common lawmaking, federal courts should see themselves as more tied to custom, general principles of the common law, and precedent, rather than seeing themselves as engaged in a freewheeling search for the best policy. This methodology makes federal common law less subject to criticism as usurping the lawmaking roles of other government actors. Professor Merrill has argued that federal common law needs to be specifically intended by the framers of a …

Bivens And The Ancien Régime, Carlos M. Vázquez

Notre Dame Law Review

This Essay considers the relevance for Bivens claims of the Court’s shift to a nouveau régime to address the implication of private rights of action under statutes. Part I describes and assesses the Court’s reasons for shifting to the nouveau régime in the statutory context. Part II explains why the Court’s shift to a nouveau régime for implying damage remedies under federal statutes does not justify a similar shift with respect to constitutional remedies. The Constitution’s omission of specific remedies for violation of the Constitution’s substantive provisions does not reflect the Founders’ belief that such remedies are unnecessary to give …

Stare Decisis As Authority And Aspiration, Randy J. Kozel

Notre Dame Law Review

The doctrine of stare decisis remains a defining feature of American law despite challenges to its legitimacy and efficacy. Even so, there is space between the role that stare decisis currently plays and the potential that it offers. The gap is evident in the jurisprudence of the U.S. Supreme Court. Though the Justices continue to underscore the fundamental status of stare decisis, the Court’s opinions sometimes seem quick to depart from precedents whose reasoning has fallen out of favor.

Using Bivens v. Six Unknown Named Agents as a case study, this Article explains how the Court can invigorate the doctrine …

Updating The Federal Agency Enforcement Playbook, Aiste Zalepuga

Notre Dame Law Review

This Note explores the relationship between equitable remedies and agency enforcement powers, arguing that federal courts are increasingly distinguishing between law and equity in remedies to impose limits on agency enforcement powers. Part I tracks factors driving the FTC’s broad reading of section 13(b) until AMG Capital. Part II analyzes developments in the SEC with a focus on Liu and suggest that federal courts are returning to traditional categories of equitable remedies. Part III concludes with two trends in determining the scope of agency enforcement powers. First, federal courts are requiring agencies to show that their use of equitable …

A Scapegoat Theory Of Bivens, Katherine M. Crocker

Notre Dame Law Review

Some scapegoats are innocent. Some warrant blame, but not the amount they are made to bear. Either way, scapegoating can allow in-groups to sidestep social problems by casting blame onto out-groups instead of confronting such problems—and the in-groups’ complicity in perpetuating them—directly.

This Essay suggests that it may be productive to view the Bivens regime’s rise as countering various exercises in scapegoating and its retrenchment as constituting an exercise in scapegoating. The earlier cases can be seen as responding to social structures that have scapegoated racial, economic, and other groups through overaggressive policing, mass incarceration, and inequitable government conduct more …

The Impact Of Schrems Ii: Next Steps For U.S. Data Privacy Law, Andraya Flor

Notre Dame Law Review

Schrems II invalidated Privacy Shield because the court found that it did not provide an “essentially equivalent” level of protection compared to the guarantees of the GDPR. The National Security Agency (NSA) operated surveillance programs that had the potential to infringe on the rights of EU subjects, and there was a lack of oversight and effective judicial remedies to protect rights of EU data subjects, which undermined Privacy Shield as a mechanism for data transfers. This Note sets aside the surveillance and national security issue, which would require resolution through a shift in overall U.S. national security law, and instead …

Stock Market Value And Deal Value In Appraisal Proceedings, Robert T. Miller

Notre Dame Law Review

This Essay considers two methods of valuing public companies in the context of appraisal proceedings under section 262 of the Delaware General Corporation Law (DGCL). The first method relies on the efficient capital markets hypothesis (ECMH) and values the company based on the market price of its shares before any public disclosure of the possibility of a transaction (the unaffected market price). The second relies on the price that an unrelated party agrees to pay to acquire the company in a transaction negotiated at arm’s length after a robust sales process by the selling board (the deal price). Both the …

Valuing Black And Female Lives: A Proposal For Incorporating Agency Vsl Into Tort Damages, Catherine M. Sharkey

Notre Dame Law Review

Federal agencies adopt a uniform VSL (value of statistical life)—one that does not vary according to demographic characteristics—in conducting cost-benefit analyses in connection with regulatory policy decisions. In sharp juxtaposition, the use of race- and gender-based statistics on wages and work-life expectancy in calculating tort wrongful death damage awards is an entrenched practice among forensic economists who serve as expert witnesses in tort litigation. The conventional use of race- and gender-specific economic data concerning wages and work-life expectancy in calculating tort damages leads to unjustifiable disparities in awards for blacks and women. Young female and minority tort victims bear the …

Environmental Permits: Public Property Rights In Private Lands And The Extraction And Redistribution Of Private Wealth, Jason S. Johnston

Notre Dame Law Review

Back in 1995, Professor Epstein famously termed such use of the permit power a “racket,” and as observed very recently by Dave Owen, still today many landowners and conservative critics would agree with the Supreme Court’s description of the process (in Nollan v. California Coastal Commission) as an “out-and-out plan of extortion.” However extortionate such deals may be, regulators with permit power may require landowners to bargain with them before developing their land or else face legal sanctions. This Essay explores in more detail how such bargaining has played out under two of the most important permit regimes in …

The Injunction Function: How And Why Courts Secure Property Rights In Patents, Adam Mossoff

Notre Dame Law Review

This Essay addresses one aspect of this legal and policy debate concerning remedies in patent law: how and why courts presumptively secured patent owners with injunctions against ongoing or willful infringements of their property rights. Prompted by the United States Supreme Court’s 2006 decision in eBay v. MercExchange, which created a new four-factor test for issuing injunctions on a finding of ongoing infringement of a valid patent, there is a growing body of scholarly commentary on the role of injunctive remedies in securing property rights in new technological innovations. Much of this commentary focuses on how eBay has resulted in …

The Federal Reserve As Collateral's Last Resort, Colleen M. Baker

Notre Dame Law Review

This Essay is the first step in a broader normative project analyzing the proper balance between legislation and central bank policy—between architecture and implementation—in shaping the Federal Reserve’s collateral framework to best promote market discipline and to minimize credit allocation. Its modest aim is twofold. First, it provides the first analysis of central bank collateral frameworks in the legal scholarship. Second, it analyzes the equilibrium between legislation and central bank policy in the Federal Reserve’s collateral framework in the context of its section 13(3) emergency liquidity authority, lending authority for designated financial market utilities, and swap lines with foreign central …

The Compensation Constraint And The Scope Of The Takings Clause, Thomas W. Merrill

Notre Dame Law Review

The idea I wish to explore in this Essay is whether the established methods for determining just compensation can shed light on the meaning of other issues that arise in litigation under the Takings Clause. Specifically, is it possible to “reverse engineer” the Takings Clause by reasoning from settled understandings about how to determine just compensation in order to reach certain conclusions about when the Clause applies, what interests in private property are covered by the Clause, and what does it mean to take such property? The proposed exercise is positive or descriptive in nature rather than normative. The hypothesis …

Efficient Ethical Principles For Making Fatal Choices, W. Kip Viscusi

Notre Dame Law Review

Resource allocations of all kinds inevitably encounter financial constraints, making it infeasible to make financially unbounded commitments. Such resource constraints arise in almost all health and safety risk contexts, which has led to a regulatory oversight process to ascertain whether the expected benefits of major regulations outweigh the costs. The economic approach to monetizing health and safety risks is well established and is based on the value of a statistical life (“VSL”). Government agencies use these values reflecting attitudes toward small changes in risk to monetize the largest benefit component of regulations—that dealing with mortality risks. This procedure consequently bases …