Law Commons^™

State Sovereign Immunity And The New Purposivism, Anthony J. Bellia, Bradford R. Clark

Journal Articles

Since the Constitution was first proposed, courts and commentators have debated the extent to which it alienated the States’ preexisting sovereign immunity from suit by individuals. During the ratification period, these debates focused on the language of the citizen-state diversity provisions of Article III. After the Supreme Court read these provisions to abrogate state sovereign immunity in Chisholm v. Georgia, Congress and the States adopted the Eleventh Amendment to prohibit this construction. The Court subsequently ruled that States enjoy sovereign immunity independent of the Eleventh Amendment, which neither conferred nor diminished it. In the late twentieth-century, Congress began enacting statutes …

Belief In War, Mary O'Connell

Journal Articles

Introductory Statement

Belief in war dominates our world. From Ukraine to Sudan to America’s ‘war on terror’, extraordinary resources are poured into militaries and arms races. The explanation for why belief in war has become prominent in foreign and security policy in Russia, the United States., China, NATO states and many other places is linked to the influence of Realist political theory. Pope St. John XXIII’s encyclical Pacem in Terris argued for honoring the alternatives to Realism – international law and institutions. It is time for an encyclical that responds directly to Realism and teaches belief in the authentic natural …

Teaching Administrative Law Research: Preparing Law Students For Regulatory Practice, Susan Azyndar

Journal Articles

A quick skim of daily headlines shows the breadth of regulatory law, from recommendations to limit the F.B.I’s use of warrantless surveillance to how the Consumer Product Safety Commission defines e-bikes. Many lawyers practice exclusively in regulatory settings, confronting these new developments continuously, and even lawyers who focus on less regulation-centric areas will still encounter administrative law. Law students, therefore, need to develop skills particular to practicing in this legal environment.

Power Corrupts, Emily Bremer

Journal Articles

Administrative law today neglects administration, focusing instead on power and the institutions that wield it, particularly the Supreme Court, the president, and Congress. Tracing the field’s reorientation—from the New Deal–era cases that revealed the thin political will behind the Administrative Procedure Act to the emergence of the Chevron doctrine—this paper argues that administrative law’s obsession with power corrupts the field.

Decoupling Property And Education, Nicole Stelle Garnett

Journal Articles

Over the past several years, the landscape of K–12 education policy has shifted dramatically, thanks in part to increasing prevalence of parental-choice policies, including intra- and inter-district public school choice, charter schools, and private-school choice policies like vouchers and (most recently) universal education savings accounts. These policies decouple property and education by delinking students’ educational options from their residential addresses. The wisdom and efficacy of parental choice as education policy is hotly debated. This Essay takes a step back from these education-policy debates and examines the underappreciated fact that decoupling property and education also advances at least economic development goals. …

Allocating State Authority Over Charitable Nonprofit Organizations, Lloyd H. Mayer

Journal Articles

This Essay considers the allocation of state authority to enforce the legal obligations particular to charities and their leaders among state officials, including attorneys general, judges, and legislators, and private parties. It first describes the existing allocation. It then reviews the most common criticisms of this allocation, which primarily focus on two concerns: politicization and lack of sufficient enforcement. Finally, it evaluates the most notable proposals for reallocating this authority, including the reallocation of this authority in part to private parties.

This Essay concludes that reform proposals have two fundamental flaws. First, proposals aimed at countering the political nature of …

The Private Costs Of Behavioral Interventions, Avishalom Tor

Journal Articles

The increasing popularity of behavioral interventions—also known as nudges—is largely due to their perceived potential to promote public and private welfare at dramatically lower costs than those of traditional regulatory instruments, such as mandates or taxes. Yet, though nudges typically involve low implementation costs, scholars and policymakers alike tend to underestimate their often-substantial private costs. Once these costs are accounted for, most nudges turn out to generate significantly lower net benefits than assumed, and some prove less efficient or less cost-effective than traditional instruments. At other times, the private costs of behavioral interventions are sufficiently large to render them socially …

Review Of Tom Ginsburg, Democracies And International Law, Diane A. Desierto

Journal Articles

Review of Tom Ginsburg, Democracies and International Law. Cambridge: Cambridge University Press, 2021. Pp. 250. £29.99. ISBN: 9781108843133.

Good Representatives, Bad Objectors, And Restitution In Class Settlements, Jay Tidmarsh, Tladi Marumo

Journal Articles

his Article uses two recent decisions -one prohibiting incentive awards to class representatives and one permitting disgorgement of side payments to class objectors - to explore deeper connections between class­action settlements and the law of restitution. The failure to correctly apply the law of restitution led both courts astray. First, courts can approve incentive awards, as long as an award properly reflects the benefit that the representative's efforts bestowed on the class. Second, restitution provides a basis to disgorge improper side payments to objectors, but only under conditions different from those that the court described. More broadly, attention to the …

The Secret Sauce: Examining Law Schools That Overperform On The Bar Exam, Derek T. Muller, Christopher J. Ryan Jr.

Journal Articles

Since 2010, law schools have faced declining enrollment and entering classes with lower predictors of success despite recent signs of improvement. At least partly as a result, rates at which law school graduates pass the bar exam have declined and remain at historic lows. Yet, during this time, many schools have improved their graduates' chances of success on the bar exam, and some schools have dramatically outperformed their predicted bar exam passage rates. This Article examines which schools do so and why.

Research for this Article began by accounting for law schools' incoming class credentials to predict an expected bar …

Proper Parties, Proper Relief, Samuel L. Bray, William Baude

Journal Articles

From the Introduction

In the last Term at the United States Supreme Court [2022], standing was the critical question in several major cases: the two challenges to the Biden Administration’s first student loan forgiveness plan, Biden v. Nebraska and Department of Education v. Brown, as well as the challenge to the Administration’s immigration priorities in United States v. Texas and the race-discrimination challenge to the Indian Child Welfare Act in Haaland v. Brackeen. Standing has featured heavily in journalistic coverage of the decision in 303 Creative LLC v. Elenis. And standing may have been the reason for the Court’s stay …

Election Subversion And The Writ Of Mandamus, Derek T. Muller

Journal Articles

Election subversion threatens democratic self-governance. Recently, we have seen election officials try to manipulate the rules after an election, defy accepted legal procedures for dispute resolution, and try to delay results or hand an election to a losing candidate. Such actions, if successful, would render the right to vote illusory. These threats call for a response. But rather than recommend the development of novel tools to address the problem, this Article argues that a readily available mechanism is at hand for courts to address election subversion: the writ of mandamus. This Article is the first comprehensive piece to situate the …

If You Can't Beat Them, Join Them: Richard Posner And Behavioral Law And Economics, Avishalom Tor, Doran Teichman, Eyal Zamir

Journal Articles

Since its publication in 1973, Economic Analysis of Law (the Treatise) by Richard Posner has been recognized as the canonical treatise in the field. Given this status, observing changes over time in the different editions of the book can highlight substantial and methodological shifts in the area. On this backdrop, this brief essay will highlight Posner's change of attitude towards behavioral analysis of law over the years, culminating with the incorporation of behavioral insights into the las edition of this book, published in 2024.

The President Of The Senate, The Original Public Meaning Of The Twelfth Amendment, And The Electoral Count Reform Act, Derek T. Muller

Journal Articles

When Congress convenes under the Twelfth Amendment and the votes of presidential electors are counted, there are three different responsibilities to consider. First, who presides over the joint session where counting takes place, and what is the role of that presiding officer? Second, who counts the electoral votes? Third, who resolves disputes about those electoral votes?

This Essay answers those questions. First, the presiding officer in the joint session is the President of the Senate, and she acts as any other presiding officer of a legislature. She initiates actions pursuant to precedent, parliamentary procedures, and the wishes of the chamber. …

Nonprofits, Taxes, And Speech, Lloyd H. Mayer

Journal Articles

Federal tax law is of two minds when it comes to speech by nonprofits. The tax benefits provided to nonprofits are justified in significant part because they provide nonprofits great discretion in choosing the specific ends and means to pursue, thereby promoting diversity and pluralism. But current law withholds some of these tax benefits if a nonprofit engages in certain types of political speech. Legislators have also repeatedly, if unsuccessfully, sought to expand these political speech restrictions in various ways. And some commentators have proposed denying tax benefits to groups engaged in other types of disfavored speech, including hate speech …

Book Review, Cindy Tian

Journal Articles

Reviewing:

Strum, Philippa. On Account of Sex: Ruth Bader Ginsburg and the Making of Gender Equality Law. Lawrence, Kansas: University Press of Kansas, 2022. 206p. $21.95.

Disaggregating State Bankruptcy, Michael A. Francus

Journal Articles

States today face fiscal challenges that they cannot surmount. With trillions in debt and billions in deficits, states are rapidly reaching the point where they cannot satisfy their obligations to pensioners, employees, and residents. This deterioration of state finances has, in turn, revived the debate over whether Congress should expand the Bankruptcy Code to allow states to file for bankruptcy. The debate, though, overlooks how, as a practical matter, bankruptcy is already available to financially distressed states. Chapter 9 of the Bankruptcy Code permits a state’s political subdivisions, public agencies, and instrumentalities to file for bankruptcy if the state authorizes …

Abortion—A Question Of Human Rights, Geoffrey J. Bennett, Christina M. Lyon

Journal Articles

Unlike the American Supreme Court which has been prepared to acknowledge, confront, and attempt to resolve the many problems associated with abortion, the European Commission of Human Rights in two cases that have only recently been reported has disappointingly side-stepped many of the difficult issues involved, and raised more questions than it answers. Furthermore, the reasoning in these decisions, which are concerned with the interpretation of several of the Articles of the European Convention on Human Rights, is at times vague and curiously ill-argued. The two decisions are first a German case, Bruggeman and Scheuten v Federal Republic of Germany …

Does An Initial Public Offering (Ipo) Issuer's Securities And Exchange Commission Registration Fee Calculation Method Predict Pricing Revisions And Ipo Underpricing?, Patrick Corrigan

Journal Articles

This paper proposes a new proxy for the ex ante expectations of issuers and their underwriters about the direction of pricing revisions during the roadshows of an initial public offering (IPO): the way issuers elect to calculate the registration fees owed to the Securities and Exchange Commission. Consistent with fee-minimizing decision-making, I find that the choice of fee calculation method is associated with pricing revisions and IPO underpricing. This relationship suggests that issuers or their advisors may not incorporate economically significant private valuation information into the initial pricing range estimate and initial public offering price. The results provide empirical support …

Classification Of Indigenous Data Sovereignty And Data Privacy: Indigenous And Common Law Patterns, Cindy Tian

Journal Articles

On February 23, 2022, Jolande Goldberg, Senior Law Classification Specialist at the Library of Congress, gave a presentation for the Legal Cataloging Forum on the classification aspect of indigenous data sovereignty entitled Information & Data: Information Society and Personal Rights & Interests. A Review of Indigenous, Common & Civil Law Classification Patterns. In this presentation, Jolande discussed the changes and updates proposed to Library of Congress Classification K schedules for works on data sovereignty and information privacy. The presentation covered an extensive discussion on the subject matter including terminology, relationships, and hierarchies in the classification schedules (both global and regional …

The Bipartisan Consensus On Big Tech, Roger P. Alford

Journal Articles

This Article contends that there is an emergent bipartisan consensus that Big Tech has grown too powerful and that action must be taken to address its abuse of power. That action takes the form of a variety of legislative proposals to enhance government enforcement powers, reform the merger laws, and address self-preferencing, data portability, and interoperability. Litigation efforts focus on Facebook and Google’s abuse of monopoly power, particularly with respect to Facebook’s elimination of competition through acquisitions and Google’s abuse of monopoly power in search and display advertising. While we are in the midst of one of the most divisive …

Introduction To The Bremer-Kovacs Collection: Historic Documents Related To The Administrative Procedure Act Of 1946 (Heinonline 2021), Emily S. Bremer, Kathryn E. Kovacs

Journal Articles

Few statutes have a legislative history as rich, varied, and sprawling as the Administrative Procedure Act of 1946 (APA). In recent years, courts and scholars have shown increased interest in understanding this history. This is no mean feat. The APA’s history spans nearly two decades, and it includes numerous failed bills, a presidential veto, and a full panoply of congressional documents. In addition, much of the most crucial documentation underlying the APA was produced outside of Congress—by the executive branch—and even outside of government—by the American Bar Association. Identifying and locating all the relevant documents is difficult. Understanding each piece …

On Foxes And Hedgehogs, Roger P. Alford

Journal Articles

This Article is about John Nagle’s many means to one great end. It will outline the many themes of his scholarship: (i) environmental law, (ii) statutory interpretation, (iii) constitutional law, (iv) nuisance and pollution, (v) election law and campaign finance, (vi) Christianity and the environment, and (vii) national parks. It will offer conclusions on how he used his scholarly interests as a means to pursue his overarching worldview.

Preventing Emissions From Slipping Through The Cracks: How Collaboration On New Technologies To Detect Violations And Minimize Emissions Can Efficiently Enforce Existing Clean Air Act Regulations, Kathryn Caballero

Journal Articles

The link between air pollution and poor public health is well known and has been farther documented during the COVID-19 pandemic, 1 but EPA has outdated methods and rules to detect air emissions. Enforcing existing environmental regulations presents challenges because the detection and monitoring technologies identified in the regulations, or the regulation language itself, may not sufficiently identify environmental pollution, let alone complex environmental fraud. How can EPA best use new technologies and concepts to detect violations, with the intent of minimizing emissions, to improve human health and environmental outcomes during the lengthy process of drafting and publishing new regulations? …

Who Is Wise Among You?, Bruce R. Huber

Journal Articles

Bruce Huber, Professor of Law at Notre Dame Law School, provides the eleventh and last essay in Notre Dame Law Review Reflections' special issue in memory and honor of John Copeland Nagle, also a Professor of Law at Notre Dame Law School, whom he considered a friend and colleague.

Contracts Without Courts Or Clans: How Business Networks Govern Exchange, Sadie Blanchard

Journal Articles

Legal scholars have long recognized the close-knit community as an alternative institution for supporting trade when contract law and trusted courts are unavailable. But recent research suggests that another option may be available: heterogeneous business networks. What’s interesting is that these networks lack features traditionally seen as essential to community-supported trade. In particular, they lack preexisting noncommercial social ties that allow reliable and trusted information to spread at low cost, make exiting the network difficult, and enable coordinated sanctioning of cheaters. As a result, some leading scholars doubt that these networks are doing the work of sustaining cooperation. This Article …

Nominal Damages As Vindication, Sadie Blanchard

Journal Articles

A recent Supreme Court decision inspired a resurgence of interest in an old mystery: how can nominal damages vindicate a plaintiff for past harm? The Court relied on the longstanding common law practice of entitling a plaintiff to sue for violation of her rights, even without demonstrating harm in fact, and to recover nominal damages. Courts have long asserted that awarding nominal damages in such suits vindicates the plaintiff. But they have not explained just how awarding $1 provides vindication, and serious observers scoff at the idea that it does. This Article offers a theory of vindication through nominal damages …

A Critical Problem Needing A Bolder Solution?: A Response To Atinuke O. Adediran's "Nonprofit Board Composition", Lloyd Hitashi Mayer

Journal Articles

The governing boards of nonprofit organizations, and particularly of nonprofits that serve low income and other vulnerable populations, fail to adequately include the populations that they serve. At least this is the common understanding among people familiar with these boards. Professor Atinuke Adediran not only confirms the existence of this problem but clarifies it in four important ways. Professor Adediran also proposes concrete steps to address it; although, the clarity she has brought to the problem raises the question of whether she could have been bolder in her proposed solutions.

The clarity comes from new data, careful consideration of previous …

Getting Into Equity, Samuel Bray, Paul Miller

Journal Articles

For two centuries, common lawyers have frequently talked about a “cause of action.” But “cause of action” is not an organizing principle for equity. This Article shows how a plaintiff gets into equity, and it shows equity is shaped by the interplay of its remedial, procedural, and substantive law. Equity is adjectival, related to law rather than the other way around. Remedies, not rights, are what give it power. And for getting into equity, it is the grievance that is central. To insist on an equitable cause of action is to work a fundamental change in how a plaintiff gets …

Bon Voyage, My Friend, Amy Coney Barrett

Journal Articles

I met John in the fall of 2000, when he traveled to Washington to recruit new faculty at the annual hiring conference. Although I was not then on the teaching market, John heard that I intended to enter it in a year or two. He invited me to have coffee to discuss my plans, and so began a friendship that spanned nearly twenty years.

John wore many hats in the course of our relationship: mentor, colleague, co-author, and treasured friend.

Rather than putting his resources into himself, John put them into his family, friends, church, and work. And in each …