Law Commons^™

Ndls Communicator: Week Of 12.20.21, Notre Dame Law School

NDLS Communicator

The Latest News

• Three ND Law alumni join Religious Liberty Initiative team
• Kresge Law Library receives rare, antique English legal documents from alumnus
• Roger Alford testified at the Senate Subcommittee
• Nicole Garnett on Religious Freedom Matters podcast
• Lloyd Mayer writes for The Conversation.com
• Diane Desierto to serve on EJILTalk board

Student News

• Jorge Barrera Rojas named fellow of the Stanford Constitutional Law Center

Events

• Thursday, December 23, 2021 through Monday, January 3, 2022 Christmas Holiday
• Tuesday, January 4: Campus reopens after Christmas holiday
• Wednesday, January 5 and Thursday, January 6, 2022: Empirical, Behavioral, and Experimental Analyses of Law, Tel Aviv …

Hearing Before The United States Senate Committee On The Judiciary, Subcommittee On Competition Policy, Antitrust, And Consumer Rights: The Impact Of Consolidation And Monopoly Power On American Innovation, Roger P. Alford

Congressional Testimony

Originally published by the United States Senate Committee on the Judiciary

Perma.cc

Copy of Testimony

Perma.cc

Ndls Communicator: Week Of 12.13.21, Notre Dame Law School

NDLS Communicator

The Latest News

• John Templeton Foundation awards $2.1 million grant to ND Law’s Religious Liberty Initiative
• ND Law’s IP & Entrepreneurship Clinic settles in at Innovation Park
• ND Stories podcast: Proving Innocence
• Nicole Garnett on Carson v. Makin Supreme Court case
• Other Carson v. Makin news briefs
• Faculty on Dobbs v. Jackson Supreme Court case
• Carter was on the National Constitution Center's We the People podcast, "The Dobbs v. Jackson Case – Part 2."
• Rick was a panelist in "Courthouse Steps Oral Argument Webinar: Dobbs v. Jackson Women's Health Organization" sponsored by the Federalist Society."
• Barry Cushman on the Pacific …

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.

Fc21 – What Should It Mean For A Catholic University To Be 'Anti-Racist'?, Marcus Cole, Robert K. Vischer

2019–Present: G. Marcus Cole

By Robert K. Vischer (University of St. Thomas School of Law), with a response by G. Marcus Cole (Notre Dame Law School). From the 2021 Notre Dame Fall Conference, "I Have Called You By Name: Human Dignity in a Secular World". Session chair: Sean Seymore (Notre Dame Law School).

Full speaker lineup: https://ethicscenter.nd.edu/programs/

Mmu: 11/29/21–12/05/21, Student Bar Association

Monday Morning Update

This Week @ NDLS

General Announcements

Stoic Start to the Week

Sport Report by Ashley Topel

1L of the Week: Tony Imburgia

2Ls Taking Ls: Caleb Perez

Ask a 3L: Gordon McCormack

Mmu: 11/29/21–12/05/21, Student Bar Association

Monday Morning Update

This Week @ NDLS

General Announcements

Stoic Start to the Week

Sport Report by Ashley Topel

1L of the Week: Tony Imburgia

2Ls Taking Ls: Caleb Perez

Ask a 3L: Gordon McCormack

Ndls Communicator: Week Of 11.29.21, Notre Dame Law School

NDLS Communicator

The Latest News

• Religious Liberty Initiative files amicus brief in Supreme Court case Shurtleff v. Boston
• ND Law ranked ninth in number of graduates working at highest-grossing U.S. law firms
• Rick Garnett and Carter Snead on the upcoming Supreme Court case, Dobbs v. Jackson Women’s Health Organization
• Sherif Girgis quoted in AP News article
• Felicia Caponigri publishes article in Cardozo Arts & Entertainment Law Journal
• Diane Desierto writes for EJIL Talk!
• Nicole Garnett to speak at Manhattan Institute panel

Student News

• Everyday Holiness Podcast: Fr. Matt Kuczora

Events

• Monday, November 29: Graduate Seminar Speaker Series: Government Lawyering with Roger Alford, …

Mmu: 11/22/21–11/28/21, Student Bar Association

Monday Morning Update

Weekly Activities

General Announcements

Stoic Start to the Week

Sport Report by Ashley Topel

1L of the Week: Anthony Krempa

2Ls Taking Ls: Laura Mahoney

Ask a 3L: Phil Klindt

Ndls Communicator: Week Of 11.22.21, Notre Dame Law School

NDLS Communicator

The Latest News

• Rice-Hasson Distinguished Lecture Series: Mary Ann Glendon
• Inalienable Rights and the Traditions of Constitutionalism Conference
• Christine Venter wrote for BYU Law
• Jay Tidmarsh quoted in the news
• Father John Paul Kimes speaks to NPR
• Jimmy Gurulé quoted in Newsweek
• Nicole Stelle Garnett publishes new report on private-school choice
• Rick Garnett on Bloomberg Law podcast: Religious Rights and State Secrets at SCOTUS
• Diane Desierto co-authors policy brief for Pulte Institute
• Sean Seymore to give talk at Harvard Law
• Emily Bremer participates in ABA panel discussion

Student News

• ND Law student speaks at National Association of Muslim Lawyers conference …

Ndls Communicator: Week Of 11.15.21, Notre Dame Law School

NDLS Communicator

The Latest News

• Veterans Day 2021: Honoring our ND Law student veterans
• ND Law holds London conference to celebrate the work of Professor John Finnis
• Houston Chronicle publishes ND Law Religious Liberty Initiative editorial on Ramirez v. Collier
• Mark Telloyan named finalist for St Joseph County judge
• Jay Tidmarsh quoted in The Washington Times
• Supreme Court Preview: Carson v. Makin by Professor Nicole Garnett
• Gray Matters Podcast features Nicole Garnett
• Gerry Bradley writes book review for First Things
• Rick Garnett to speak on Last Rights at University of Chicago
• Diane Desierto participates in webinar at Gujarat Maritime University

Student News …

Mmu: 11/15/21–11/21/21, Student Bar Association

Monday Morning Update

This Week @ NDLS

General Announcements

Stoic Start to the Week

Sport Report by Ashley Topel

1L of the Week: Rita Lake

2Ls Taking Ls: Janae Yip

Ask a 3L: Jess Wolfert

Mass Of Christian Burial, University Of Notre Dame

1975–1999: David T. Link

Rev. David Thomas Link, Dean Emeritus

August 24, 1936 to October 28, 2021

Mass of Christian Burial

Basilica of the Sacred Heart

Notre Dame, Indiana

November 8, 2021

Mass Card Matthew 25:35-36, University Of Notre Dame

1975–1999: David T. Link

Mass Card

Mass Card Hebrews 13:1-3, University Of Notre Dame

1975–1999: David T. Link

Mass Card

Mmu: 11/08/21–11/14/21, Student Bar Association

Monday Morning Update

This Week @ NDLS

General Announcements

Stoic Start to the Week

Sport Report by Ashley Topel

1L of the Week: Sarah Barrett

2Ls Taking Ls: Tim Hutchinson

Ask a 3L: Nate McKeon

Ndls Communicator: Week Of 11.08.21, Notre Dame Law School

NDLS Communicator

The Latest News

• In memoriam: Notre Dame Law School dean emeritus Rev. David T. Link
• Two Notre Dame Law faculty write chapters in Handbook on Corporate Purpose and Personhood
• Diane Desierto named chair-rapporteur of UN expert group
• Judy Fox presented at the 2021 Washburn Law Journal Symposium
• Lloyd Mayer quoted in Bloomberg
• Article by Sam Bray and Paul Miller reviewed in Jotwell
• Diane Desierto speaks at BVI Arbitration Week

Alumni News

• Alumni named to leadership roles at International Society of Public Law

Events

• Monday, November 8: Carson v Makin, Nicole Garnett and John Meiser will discuss the pending Supreme Court …

Mmu: 11/01/21–11/07/21, Student Bar Association

Monday Morning Update

This Week @ NDLS

General Announcements

Stoic Start to the Week

Sport Report by Ashley Topel

1L of the Week: Colton Gregg

2Ls Taking Ls: Shannon Moore

Ask a 3L: Alex Bender

Ndls Communicator: Week Of 11.01.21, Notre Dame Law School

NDLS Communicator

The Latest News

• In memoriam: Notre Dame Law School dean emeritus Rev. David T. Link
• 2021 All-Faculty Team: Veronica Root Martinez
• Notre Dame Law School Exoneration Justice Clinic Video
• Patrick Corrigan quoted in Yahoo Finance
• Mary Ellen O'Connell to give Sanremo Lecture on International Humanitarian Law
• Nicole Garnett writes for National Review about Justice Thomas
• The Key Precedent in United States v. Texas
• Emily Bremer writes for Yale Journal on Regulations
• Sam Bray and Paul Miller wrote, "Getting into Equity," forthcoming in the Notre Dame Law Review.
• Cambridge University Press publishes case note by Diane Desierto
• Mark Telloyan and two …

Dean Marcus Cole's Message, G. Marcus Cole

1975–1999: David T. Link

Dean Cole informs the Notre Dame Law School community of the passing of Fr. David T. Link '58, JD '61.