Digital Commons Network^™

The Second Amendment's Catholic Problem, Jared Danaher

Duke Law Journal

After New York State Rifle & Pistol Association v. Bruen, history is the touchstone of Second Amendment analysis. Thus, this Note explores an understudied part of America's long and complicated history with weapons: Catholic disarmament. By undertaking a detailed historical analysis of three Catholic disarmament measures in the late colonial United States, this Note attempts to determine what the history means for present day firearms law. It concludes that even though courts frequently cite America’s history of Catholic disarmament, they rarely use it in a historically accurate way. Modern courts use Catholic disarmament to justify weapons bans on people …

Liability In The Pipeline: The Expanding Scope Of Pfas Litigation And Regulation, Rebecca Huckabay

Oil and Gas, Natural Resources, and Energy Journal

No abstract provided.

Walking On Sunshine: A Survey Of Oklahoma Concurrent Land Use Law And How Accommodation Can Fill In Gaps Revealed By Emerging Solar Energy, Nick Halbroeder

Oil and Gas, Natural Resources, and Energy Journal

No abstract provided.

The Clash Between Oklahoma’S Oil Industry And Overriding Royalty Interests: Why Legislative Action Is Needed, Bryce Cormack

Oil and Gas, Natural Resources, and Energy Journal

No abstract provided.

Not All That Glitters Is Black Gold: Using Stranded Gas To Mine Cryptocurrencies And The Public Regulation Of Waste, Emily Burns

Oil and Gas, Natural Resources, and Energy Journal

No abstract provided.

Bandung And The Future Of Africa’S Pasts, Rabiat Akande, Olufemi Elias

Articles & Book Chapters

The idea of decolonization that animated the spirit of the 1955 Bandung Conference continues to power imaginations of an alternative to the world Bandung inhabited. In this essay, we look upon Africa from Bandung, and simultaneously from Africa to Bandung, to recover an “otherwise”—a seeing of the future from Africa’s pasts. In the future envisioned in Bandung and beyond, flag independence was regarded as the first stop in the project of decolonization.1 The conference was to provide both “guidance to mankind … [on] the way which it must take to attain safety and peace” and “evidence that Asia and Africa …

Myths And Magical Thinking: American Civil Religion, The Establishment Clause, And “Codified Irrationality” In Anti-Crt Measures, Kyle Reinhard

Journal of Civil Rights and Economic Development

(Excerpt)

In Part I, I preview some of the overlapping tensions in U.S. public schooling created by the occasionally competing mandates of education federalism and democratic theory; describe the current state of the law with respect to the constitutionality of state and local governments seeking to inculcate (allegedly) prosocial community values in curriculum; and consider how battles over the meaning of “patriotism” through the decades show that ideology and religion often blend—and still, inevitably, make it—into the public square broadly nonetheless.

In Part II, I describe how religion is a useful tool, both descriptively and as a constitutional jurisprudential framework, …

Impact Of Trauma-Informed Care On The Restorative Justice Ecosystem, Amy Kight

Doctoral Dissertations and Projects

Created and titled as the ARTIC Project (Activating Restoration through Trauma-Informed Courts), this research addresses the gap between industrial/structural realities and relationship/nurturing realities within Substance Use Disorder (SUD) recovery and restorative justice paradigms. Grounded in Trust-Based Relational Intervention (TBRI), the project emphasized that sustainable behavioral change requires balancing connection with correction (KPICD, 2022). Through a biblical lens, the researcher posits complete healing only comes from our Heavenly Father and occurs on an individual level. With this in mind, TBRI research affirms that organizations do not change people - people change people (KPICD, 2022). This intentional relationship between God, Creation, Others, …

Finessing A Medical Expert’S Qualifications: From Professional Communities’ Boundaries To Personal Character, Patrick Garon-Sayegh

Osgoode Hall Law Journal

This article examines the kinds of arguments that can be made in debates regarding whether or not an expert is properly qualified to critique the work or opinions of another expert. Since these debates routinely occur in both legal and political arenas, a more fine-tuned sense of their argumentative dynamics can be fruitful for reasoning through them. This article is built around the analysis of a decision which concerned the admissibility of a physician’s testimony on the medical standard of care in a malpractice case. A detailed parsing of the arguments in that decision lays the groundwork for a theoretical …

Crim-Eviction: Eviction And Social Control At A Residential Tenancies Tribunal, Sarah Buhler

Osgoode Hall Law Journal

Because eviction from rental housing can lead to highly negative outcomes, including homelessness, trauma, neighbourhood instability, and deepening inequities, it is important to understand the reasoning processes employed by tribunals when they wield the power of eviction. This article conducts a critical reading of decisions of the Office of Residential Tenancies, Saskatchewan’s residential tenancies tribunal, that deal specifically with urgent landlord applications for immediate eviction based on tenant behaviours that are alleged to be criminal, illegal, frightening, or dangerous. Coining the term “crim-eviction” to help describe this category of decisions, the article identifies that residential tenancies tribunals like the Office …

Corrected Amicus Brief Filed By Amici Curiae Law Professors In 25-11612 & 25-11821, William Snape, Delicianna Winders, Patrick Parenteau, Christopher Courchesne, Hope Babcock, Holly Doremus, Paul Boudreaux, Oliver A. Houck, Zygmunt J.B. Plater, Michelle Benedict Nowlin, Daniel Rohlf

Amicus Briefs & Court Filings

STATEMENT OF THE ISSUES: Whether the district court's injunction requiring FDEP to cease Endangered Species Act-violating conduct, obtain an incidental take permit before it continues with the conduct, and implement reasonable protective measures violates principles of cooperative federalism, the Tenth Amendment, or the anti-commandeering doctrine.

Ndls Communicator: Week Of 10.13.25, Notre Dame Law School

NDLS Communicator

The Latest News

• Lady Chief Justice of Northern Ireland Siobhan Keegan talks about life and the law at Notre Dame
• Wrongful Conviction Day
• Annual Red Mass
• Notre Dame Law Students Assist with UN Report on Religious Freedom for People on the Move

Faculty Briefs

• Nicole Garnett
• Patrick Corrigan
• Roger Alford
• Mary Ellen O'Connell
• Jen McAward
• Haley Proctor
• Rick Garnett
• Derek Muller
• Gerard Bradley

ND Law in the News

• The Law School's recent panel, "How Does Catholic Social Teaching Animate Human Rights in Africa," was mentioned in Irish Legal Network's Rights Watch. Events

Events

• Law and Economics Workshop
• SCOTUS Term Preview …

Tinkering With The Machinery Of Death: Execution Through Nitrogen Hypoxia, Emiliano Villarreal

The Scholar: St. Mary's Law Review on Race and Social Justice

The modern era of the death penalty in the United States began in 1976 when the Supreme Court reinstituted the death penalty just four years after having found it to be unconstitutional. Since then, various states, as well as the federal government, have experimented with different methods of execution to find the most “humane” way of carrying out an execution. In 2018, Alabama legalized the use of nitrogen hypoxia as a method of execution, and in 2024, became the first state to execute a person with this new, previously untested method. However, the use of nitrogen hypoxia has been the …

When Is Free Speech “Beyond” The Constitution?, Abner S. Greene

The Journal of Contemporary Legal Issues

The constitution of a nation without a state action doctrine might limit private restriction or compulsion of speech just as it limits the state. In such a nation, “free speech beyond the constitution” might not be a particularly meaningful concept. In the United States, however, the First Amendment’s free speech clause limits only what the federal, state, and local governments may do. As a nonconstitutional policy matter, it might or might not be a good idea for the government to impose First Amendment- like restrictions on private actors or for private actors to voluntarily impose First Amendment-like restrictions on themselves. …

Comment On Hurd And Moore, Richard Arneson

The Journal of Contemporary Legal Issues

In their essay on “Wrongful Student Speech and Rightful Private University Responses to It,” Professors Heidi Hurd and Michael Moore (hereafter, Hurd & Moore) deepen the discussion by situating it in a general account of moral limits on freedom of expression and by noting connections to some of their own views on moral theory. The result is an excellent primer on freedom of speech, and more than just a primer. Their general views are shown to have plausible implications for tangled questions about what private university administrators ought to do in response to problematic examples of campus protest. That this …

Ndls Communicator: Week Of 10.06.25, Notre Dame Law School

NDLS Communicator

The Latest News

• Faculty profile: Professor Mary Ellen O'Connell, globally influential scholar of international law and peace
• Panel explores Catholic Social Teaching and human rights in Africa

Faculty Briefs

• Nicole Garnett
• Sadie Blanchard
• Patrick Corrigan
• Roger Alford
• Mary Ellen O'Connell
• Christine Venter
• Paolo Carozza
• Avishalom Tor
• Emily Bremer
• Fr. John Paul Kimes
• Derek Muller
• Judy Fox
• Gerard Bradley

ND Law in the News

• Notre Dame Law School's partnership with Harvey AI was featured in a Law360 article.

Student News

• Third-year law student Dennis Weiboldt III wrote an article for First Things Magazine about the Red Mass

Events

• Law and Economics …

What On Earth Is A Burden On Interstate Commerce?, Andrew Jordan

Northwestern University Law Review

What is a burden on interstate commerce? That’s an important question under the Dormant Commerce Clause’s Pike balancing test. But it’s a question whose answer has proven elusive. This shouldn’t be a surprise. After all, states disagree about what counts as a burden or a benefit, and how much weight each has. And there aren’t any obvious constitutional principles we can point to for resolving those disagreements. Recently, some scholars have tried to ground dormant commerce doctrine in economic cost–benefit analysis. The supposed virtue of that approach is that it is neutral as to competing preferences. Thus, for the Court …

Remedies For Unreasonable Administrative Action After Vavilov, Kate Glover Berger

Articles & Book Chapters

This article comments on Pepa v. Canada (Citizenship and Immigration), arguing that it departs from the Supreme Court's previous guidance on remedies in an unprincipled manner. The article outlines the remedial framework established in Canada (Minister of Citizenship and Immigration) v. Vavilov, traces its development over the past five years, discusses key departures from the general rule of remittal, and highlights the principles these departures reflect. It then examines the approach to remedies adopted in Pepa. This assessment shows that the Pepa majority's invocation of the "single reasonable interpretation" exception to the general rule of remittal departs from the core …

Animus, Again, William D. Araiza

William & Mary Bill of Rights Journal

In the first week of his second term, President Donald Trump issued multiple executive orders targeting immigrants and transgender people. Additional actions targeting these and other vulnerable groups have already followed. Others may come; more generally, such orders will likely remain a part of the President’s policy agenda and governing style. These actions call for analysis of the legal tools litigants can deploy to challenge them. That call is urgent, as a response not just to the orders already issued, but to others the Administration might promulgate in the future.

One of those tools is equal protection animus. This Article …

Statutory Copy-Pasting In The Law Of Sovereign Immunity, Chimène I. Keitner

William & Mary Law Review

Congress sometimes copy-pastes language from one statute into another statute. While this can serve the goals of consistency and efficiency, copy-pasting can cause problems when done across disparate legal regimes, such as different sovereign immunity doctrines. When Congress enacted the Foreign Sovereign Immunities Act (FSIA) of 1976, it borrowed language from the Federal Tort Claims Act (FTCA) of 1946 that exempts the exercise of “discretionary functions” from tort jurisdiction. Both statutes allow private damages claims against governmental entities in defined circumstances. Despite this superficial similarity, the statutes were enacted in very different contexts and serve fundamentally different purposes. Nonetheless, courts …

When The Screen Lies: Navigating Privacy And Publicity In An Ai World, Nancy M. Menagh

Fordham Law Review

A key issue of the 2023 SAG-AFTRA strike was the use of generative AI in the entertainment industry and, more specifically, the creation of uncanny digital replicas of performers being used without their knowledge or consent. Since then, concerns have only intensified around the unauthorized creation and use of digital replicas and the ease with which they can be made and disseminated online. Currently, there is a patchwork of state laws that attempt to target these issues, but they have proven ineffective against the challenges presented by digital replicas.

This Note analyzes the problems digital replicas have raised in the …

Safe Sex In The Age Of Big Tech Feminism, Brenda Dvoskin, Thomas E. Kadri

Articles

Lawmakers and technology companies are regulating online sexuality in the name of feminism. Whereas libertarian ideals dominated early debates about internet governance, "safety" has become the rallying cry to regulate online activity in the age of Big Tech. Legislators across the political spectrum and companies around the world are devising interventions meant to keep people - and especially women safe from the risks of online sexuality. Through law and technology, they target everything from privacy invasions to unwanted messages to sexual deepfakes. We call this regulatory and ideological trend Big Tech feminism.

This Article interrogates the feminist strands animating Big …

Compassionate Causation In The Domestic Violence Survivors Justice Act, Zoë Lewis Ewing

University of Chicago Law Review

This Comment evaluates the implementation of the Domestic Violence Survivors Justice Act (DVSJA), a New York law passed in 2019 to provide shortened sentencing ranges for domestic violence survivors convicted of crimes. It identifies an inconsistency in sentencing courts’ application of the law’s causation standard, which requires that a petitioner’s experience of domestic violence be a “significant contributing factor” to their criminal conduct. Some courts interpret the prong narrowly, while others apply a broad causation standard. This Comment argues that courts should opt for the latter approach and consider causation in the DVSJA satisfied if domestic violence was “sufficiently significant …

Disclosure Puzzles In Patent Law, Jonathan S. Masur, Lisa Larrimore Ouellette

University of Chicago Law Review

Since its inception, patent law has required that inventors publicly disclose information about their inventions in exchange for receiving patent rights. This foundational requirement is policed through multiple doctrines: patents fail “enablement” if “undue experimentation” is needed to practice the invention, and they lack adequate “written description” when they fail to establish the inventor’s “possession” of the invention.

Despite disclosure doctrines’ centrality, fundamental puzzles about their application remain unresolved. What are the boundaries between enablement and written description? Do equivalents claimed via the doctrine of equivalents have to be enabled or described? Are the rules different for after-arising technologies? Federal …

Necessary Developments: Calibrating The Fair Housing Act’S Reasonable Accommodation Provision, Ben Griswold

University of Chicago Law Review

The Fair Housing Act prohibits denying people with disabilities “reasonable accommodations.” But courts have long split over how to interpret this provision. At the center of the divide is the statutory requirement that an accommodation be “necessary to afford . . . equal opportunity to use and enjoy a dwelling.” Courts diverge over whether the statute imposes a strict-necessity standard, requiring that an accommodation be truly indispensable, or a lenient-necessity standard, requiring only that the requested accommodation ameliorate the plaintiff’s disability.

Rather than pick one interpretation, this Comment suggests that courts should tailor the necessity standard they employ to the …

“That’S Not My Name”: The Linguistic Violence Of Misnaming Parties In Court Proceedings, Robert S. Chang, Cecily C. Hazelrigg, Linda Cj Lee

Washington Law Review

This Article calls attention to the harms done when parties are misnamed in legal proceedings. Misnaming, which many might initially consider trivial, is properly understood as a form of linguistic violence that can inflict dignitary harms as well as have material consequences. Misnaming takes on a different valence when it is done by the state. This Article focuses on the misnaming of Indigenous, Asian, and Latine people, beginning first with the way misnaming is done by the administrative state. The authors then discuss misnaming as it has operated in legal proceedings, providing both historical and contemporary examples from federal and …

The Siren Song Of Territoriality, Robin J. Effron, Alan M. Trammell

Indiana Law Journal

Territoriality—the theory that a state’s physical borders determine its power and sovereignty—boasts a long, venerable history. For centuries, it served as the dominant political theory for myriad ideas. It defined a wide range of doctrines, including personal jurisdiction, choice of law, and prescriptive jurisdiction. By the middle of the twentieth century, though, this rigid territoriality no longer described or responded to the challenges of a society that had grown increasingly mobile and interconnected. Courts replaced inflexible territorial theories with more functional theories rooted in fairness and state regulatory interests.

In recent years, territoriality has seen a curious resurgence. The Supreme …

The Endorsement Test’S Early Years, 1983–1985: Notes From The O’Connor Files, Jay Wexler

William & Mary Bill of Rights Journal

One of Justice Sandra Day O’Connor’s signature contributions to U.S. constitutional law was the endorsement test, a subtle but critically important reformulation of the Court’s then prevailing approach to applying the Establishment Clause that focused on the message sent by government action supporting religion and the potentially harmful effects of that message on religious minorities and the political community. Now that the current Court has discarded the endorsement test, leaving the government freer than ever to support religion in a variety of ways, we should expect to see the harms that Justice O’Connor cared about become increasingly widespread and prevalent. …

Justice In Colorado: Achieving Animal Plaintiffhood Through The State's Common Law, Mason Liddell

William & Mary Environmental Law and Policy Review

The common law of Colorado embraces all of the premises necessary to conclude that non-human animals are legal persons who may bring suits on their own behalf. All that is necessary is for a case to bring those premises together. The state endorses a Hohfeldian understanding of rights and duties, meaning the two concepts are necessarily corollaries. So, humans’ existing statutory duty to avoid being cruel to animals entails that those same animals have a right to be free from cruelty under state statute. Then, premised on a long line of legal philosophy and the state’s understanding of “legal personhood,” …

Extreme Prison Sentences: Legal And Normative Consequences, Melissa Hamilton

Cardozo Law Review

The article examines the phenomenon of extreme sentences—defined as those exceeding 200 years—in the federal criminal justice system, raising critical questions about their rationale, proportionality, and alignment with traditional theories of punishment. Through an empirical study of 55 such cases, the analysis highlights the role of mandatory minimums, cognitive biases, and an exclusionist mindset in driving these sentences. It critiques the normalization of extreme penalties and their implications for mass incarceration, deterrence, and human dignity.