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Mired In Meyer’S Mischief A Century After Fabrication Of Constitutional Parents’ Rights, James G. Dwyer

The Journal of Contemporary Legal Issues

The seminal Supreme Court decisions Meyer v. Nebraska and Pierce v. Society of Sisters, now commemorated on their centenary anniversary, are odd doctrinal ducks. They are both still routinely cited as the foundation for ascribing to persons on whom the state has conferred legal parent status a right under the Fourteenth Amendment Due Process Clause of the United States Constitution. (According to Westlaw, judicial citation count for Meyer now nears 3000, and secondary-source citations have surpassed 7000.) It is a constitutional right to force states to confer on them greater legal power than the state is otherwise inclined to …

The Centennial Of Meyer And Pierce: Parents’ Rights, Gender-Affirming Care, And Issues In Education, Ira C. Lupu

The Journal of Contemporary Legal Issues

This paper was prepared for a Symposium, held in March 2024, marking the centennial of the Supreme Court’s decisions in Meyer v. Nebraska (1923) and Pierce v. Society of Sisters (1925). At their inception, Meyer and Pierce reflected constitutional principles of economic freedom and parental control of their children’s education. Part I traces the path of ideas put in motion by Meyer and Pierce. These include the decline of their economic freedom component and the broader grounding of their doctrines of parental authority. Eventually, the chameleon-like legacy of Meyer and Pierce stretched to include First Amendment concerns of religious …

The Conservative Response To Transformative Disruption: Voice Or Exit 100 Years After Meyer And Pierce?, Neal Mccluskey

The Journal of Contemporary Legal Issues

In 1923 and 1925, respectively, the U.S. Supreme Court rulings in Meyer v. Nebraska and Pierce v. Society of Sisters established limits on the ability of government to constrain what children’s education contains and where it occurs. The Court recognized the “right” of parents to exercise basic control over those things. One hundred years later, we are seeing a renewed emphasis on “parental rights,” both with booming growth of “school choice” programs that allow government-connected funding to follow children to educational options their parents select and efforts to constrain what public schools do. The position of conservatives on such parental …

Meyer, Pierce, And Everything After, Michael Bindas

The Journal of Contemporary Legal Issues

For a century, the U.S. Supreme Court has provided substantive protection, through the Due Process Clause of the Fourteenth Amendment, to a parent’s liberty interest in directing the education and upbringing of her children. The seminal cases for this protection—Meyer v. Nebraska and Pierce v. Society of Sisters—are widely considered part of the Court’s canon, and the Court has long referred to the liberty interest, or right, that they recognized as “fundamental.” But despite the long pedigree and significance of this right—and despite the Court’s common application of strict scrutiny to laws that restrict or draw classifications impacting …

Yeshivas And The Legacy Of Meyer And Pierce: Is Substantive Due Process Substantial Enough?, Howard Slugh, Jason Bedrick

The Journal of Contemporary Legal Issues

In America’s ongoing discussions regarding religious liberty, situations such as the conflict over New York’s yeshivas demonstrate how grave the stakes can be. Meyer and Pierce advanced the freedom of parents to educate children according to their faith and traditions, but as they relied on substantive due process, they do not offer a firm foundation upon which to build a legal case defending parents who want to enroll their children in yeshivas or similar faith-based schools. Fortunately, recent developments in First Amendment jurisprudence offer a much firmer foundation.

Should Tort Law Care About Police Officers?, Ellen M. Bublick, Jane R. Bambauer

UF Law Faculty Publications

Should police officers be able to file tort lawsuits for injuries that they suffer while on duty? In this article, written in response to Professor Sarah L. Swan's The Plaintiff Police, Professors Ellen M. Bublick and Jane R. Bambauer contend that racial equality is not served by complete immunities for civilian misconduct any more than “law and order” is served by complete immunities for police officers who abuse their power. Rather, they argue that the common law has expanded, and should continue to expand, the civil legal rights of wrongfully injured people, including people wrongfully injured while employed as police …

Actualizing Indigenous Data Sovereignty Through Tribal Self-Governance, Bailey Ulbricht

New Mexico Law Review

Data, as described by a Yurok Tribe council member, is “the original theft”—the first thing stolen from Native peoples in the United States. Indigenous data sovereignty seeks to redress this and prevent future data infractions by placing Indigenous communities in charge of decision-making about their own data. Yet with no established body of federal case law on tribal data authority, it is not immediately clear how Indigenous data sovereignty would fit within the complex and contradictory web of federal caselaw that confines tribes’ inherent sovereignty. This Article seeks to address this gap. First, as a policy matter, it argues that …

A New Way For Justice For Families Of Schoolchildren With Disabilities? A Case Note On Luna Perez V. Sturgis Public Schools, Kevin R. Hart

New Mexico Law Review

For years, the majority of courts have ruled that parents of children with disabilities were required to exhaust special education due process procedures before filing civil actions under other disability statutes. Change would come through Luna Perez v. Sturgis Public Schools. In Luna Perez, a deaf student, Miguel Luna Perez, was denied a free and appropriate education for eleven years. After settling the case under the Individuals with Disabilities Education Act (IDEA), Mr. Luna Perez (initially through his mother, but later continuing on his own) filed a claim for compensatory damages under the Americans with Disabilities Act (ADA) and Section …

Artificial Intelligence And Ethical Considerations For The New Legal Learner: An Annotated Bibliography, Sarah Starnes

Akron Law Review

This annotated bibliography focuses on providing relevant and helpful resources to those who may be new to using artificial intelligence and want to understand the legal and ethical implications. For attorneys to adhere to the Model Rules of Professional Conduct and ethically practice law in conjunction with artificial intelligence, it is vital to learn as much as possible. The articles, cases, advisory opinions, and court rules within this annotated bibliography provide insight into the current state of practicing law with AI.

French Connection: Expanding Legal Protections For Fashion Design In The United States, Mairead Rose Tuttle

Penn State Journal of Law & International Affairs (2012 - Present)

No abstract provided.

Collaborative Study Guide Assignment: Materials, Templates, “Reusable” Pedagogy, Penny Geyer

Open Educational Resources

This collaborative study guide assignment engages undergraduate criminal justice students in defining key concepts related to research methods through a peer-driven, reusable process. Along with an overview, this document includes multiple instructional materials, including a pedagogical rationale for student-created study guides, detailed instructions for six sequential assignments, grading rubrics, and a structured study guide template. Each assignment follows a rotating role system: students alternate between acting as “creators,” who draft definitions and examples for assigned terms, and “editors,” who provide feedback and refine content. Contributions are compiled in a shared doc or within the Brightspace LMS, culminating in a comprehensive, …

Governing Generative Ai, Daryl Lim

Akron Law Review

This Article paper explores the evolving landscape of copyright law in the age of generative artificial intelligence, dissecting the multifaceted challenges and opportunities it presents for creators, legal practitioners, and policymakers. Part I, “Governing Authorship,” delves into the existential questions AI poses to traditional notions of creativity and authorship, illustrating the tension between innovation and the preservation of human creators’ rights within existing legal frameworks. Part II, “Governing Infringement,” examines the intricate issues of copyright infringement in the digital era, especially the unauthorized use of copyrighted content by AI for training purposes and the exploration of private ordering mechanisms as …

A Plea For Private International Law (Conflict Of Laws), Michael S. Green

Notre Dame Law Review Reflection

Public international law primarily deals with the legal rights and duties of nations. But there is another body of international law—private international law—that seeks to coordinate private legal rights and duties in cases that straddle national borders or involve citizens of different countries.

This law has a long history. But it really took off with the expansion of travel, communication, and trade in the nineteenth century. And American courts played an outsized role in its development. Because the constituent states of the United States were, in large part, understood as retaining the sovereignty of nations, American courts took private …

Presidential Oversight Of Independent Agency Rulemaking: A Literature Review, Matthew R. Osuch

Notre Dame Law Review Reflection

Over the course of the last several decades, the role of the President vis-à-vis the administrative state has undergone a profound evolution. Central to this development is President Clinton’s Executive Order (EO) 12866, issued in 1993—a landmark directive that modernized and reinvigorated the process by which federal agencies promulgate significant regulations. Like his predecessors, President Clinton declined to extend EO 12866’s cost-benefit analysis and centralized review requirements to independent agency rulemakings. This Note provides a literature review of the competing perspectives regarding the legal permissibility and desirability of that choice and the choice of every President since to do the …

Adapting Principles To Circumstances: Maryland Shall Issue, Inc. V. Moore And The Post-Rahimi Gun Regulation Landscape, Zachary Shank

Maryland Law Review

No abstract provided.

Plight Of The American Innovator, David R. Soucy

Chicago-Kent Journal of Intellectual Property

The American innovator is at risk. Our U.S. patent system unfortunately favors the speculators over the innovators. In the fight against questionable patent suits brought by non-practicing entities (i.e., patent trolls), those disagreements have become a one-sided affair in favor of the investor. This unjust circumstance arises due to the immunity patent trolls have from the innovator’s patents. A frustrating predicament for an innovator who has often made substantial investments in protecting his or her technology that go for naught in a dispute with an entity who does not put products into the stream of commerce. Now § 285 of …

Organic Websites: Certification Of Ai-Generated Or Human-Written Content On The Internet, Andrew W. Torrance, Bill Tomlinson

Chicago-Kent Journal of Intellectual Property

This paper proposes the development of a certification system analogous to the standards used in organic food labeling, designed to distinguish websites based on the proportion of human-written versus AI-generated content. In an era where AI plays an increasingly prominent role in content creation, this system would provide transparency for consumers and uphold fair competition in digital markets. The certification would allow website creators to present verifiable evidence of their content’s provenance, ranging from entirely human-made, to a mix of human and AI contributions, to fully AI-generated content. Additionally, this paper explores the legal and policy frameworks necessary for implementing …

Preserving Diversity In The Wake Of Students For Fair Admissions, Inc.: Historical Lessons From The United States And India, Tyler Dunne

San Diego International Law Journal

Following the ban on considering race in higher education admissions under Students for Fair Admissions, Inc. v. President & Fellows of Harvard College, concerns have emerged over maintaining racial diversity in college classrooms. This analysis offers a comparative perspective, exploring the history and methodologies of affirmative action in the United States and India to identify effective strategies for promoting diversity in U.S. universities. Recommended approaches include top percent programs, socioeconomic-based affirmative action, test-optional or test-blind policies, race-based recruiting, removing legacy preferences, and holistic student reviews. By implementing these strategies, universities can still work toward their diversity goals despite the …

Generative Ai And Disinformation: Analyzing China’S Strategy Amidst U.S. Investment And Export Controls, Liana Edgar

San Diego International Law Journal

The rapid evolution of artificial intelligence (AI) technologies has ushered in a new era of technological, economic, and legal transformation. As economies expand and technology continues to evolve, AI has ignited a competition for technological supremacy, commonly known as the “AI Race.” China and the United States have taken center stage, amplifying their longstanding technological rivalry within the realm of AI. This analysis delves into China’s regulatory approach to generative AI, its strategic positioning in the ongoing AI race, and its influence operations, specifically the dissemination of disinformation. It also examines U.S. strategies for controlling AI technological advancement in China …

A Constitutional Mandate To Adopt Avs, Kevin Frazier

Washington and Lee Law Review Online

The rapid advancement of autonomous vehicle (“AV”) technology presents a unique opportunity to enhance public safety by drastically reducing road fatalities. Despite significant private sector investment and demonstrated improvements in AV performance, public adoption and integration remain hindered by regulatory gaps and societal skepticism. This Article argues that the federal government has an affirmative obligation, rooted in the doctrine of a right to effective government, to champion the adoption of technologies like AVs that meaningfully promote the general welfare.

Drawing on the Preamble’s mandate to advance the general welfare and lessons from the transition from the Articles of Confederation to …

The Arc From Non-Justiciable To Fundamental: The History Of School Funding Challenges In Pennsylvania, Claudia De Palma, Dan Urevick-Ackelsberg

Widener Commonwealth Law Review

Pennsylvania has recognized the importance of public education since the Commonwealth’s inception in 1776. Although early versions of the Pennsylvania Constitution only contemplated a discretionary system of schools for poor children, in 1834 the state’s public education system was expanded through statute to provide schooling to all children. Thaddeus Stevens, one of the founding fathers of this expansion, explained that the purpose of a universal public education system was to ensure that “the blessing of education shall be conferred on every son of Pennsylvania—shall be carried home to the poorest child of the poorest inhabitant of the meanest hut of …

The Legal Framework Of Foster Care In Egypt: A Gender Analysis Of Alternative Families And Patrilineal Structures, Amira Fadel

Theses and Dissertations

The thesis explores women’s legal representation and agency over their non-biological children, and how the foster care system in Egypt either reinforces or deconstructs existing gender roles. Hence from a sociological perspective, it accounts for foster and alternative care laws in Egypt and the amendments thereof, to examine social relationships against the backdrop of more conventional, biological families, and kinship relations. In simple terms, studying foster and alternative care laws in Egypt is crucial to grasp how non-biological families are shaped in comparison to the more conventional bonds within biological families and traditional kinship relations, while accounting for the Christian …

Flag Fever: Adoption Of New State Flags, Brian Craig

The Guardianship Journal

Several states are experiencing flag fever, and it just might be contagious. Minnesota and Utah adopted new state flags that took effect in the first half of 2024. After years of debate, the new Utah state flag officially took effect on March 9, 2024. The Minnesota state flag officially became law on May 11, 2024, replacing a controversial flag that some people called racist and ugly. Other states are also considering new flag designs. Many states still incorporate their “seal on a bedsheet” designs that are difficult to distinguish from other states and lack good attributes for flag design. The …

Corporate Exceptionalism: What's Behind The Business Community's Newfound Love Of Jury Trials, Richard H. Frankel

Widener Commonwealth Law Review

2024 was another year of blockbuster Supreme Court decisions. These range from expanding presidential immunity from criminal prosecution, overruling the Chevron doctrine, addressing access to the abortion drug mifepristone, setting standards regarding the power of federal agencies, and others. One case that has flown under the radar, at least outside of administrative law circles, is SEC v. Jarkesy. On its surface, the Supreme Court narrowly held that “the Seventh Amendment entitles a defendant to a jury trial when the [Securities and Exchange Commission (SEC)] seeks civil penalties against him for securities fraud,” rather than being required to proceed in an …

Indigenous Communities Suffer Multi-Generational Trauma (“Susto”) From The Trafficking And Slavery Of Native Women And Children, Bill Piatt, Karagan Carson, Meghan Monahan, Makayla Perez

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

No abstract provided.

Is The Us Exit Tax Constitutional?, Reuven S. Avi-Yonah

Law & Economics Working Papers

The recent US Supreme Court decision in Moore vs. United States raised the possibility that the Court would declare that realization is required for a tax provision to be constitutional. The US exit tax on expatriations is the most likely vehicle for a post-Moore constitutional challenge to taxation without realization because (a) it involves individual taxpayers; (b) it does not involve attribution, because the tax is imposed directly on the expatriating taxpayer, and (c) it involves precisely the kind of tax that was the direct target of the Moore litigation, namely a mark to market tax on rich taxpayers (the …

The Unremarked: A Cultural Analysis On Access To Applied Behavior Analysis Therapy For Autism By Ethnic-Minority And Immigrant Children, Yamel C. Herrera

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

No abstract provided.

Ndls Communicator: Week Of 02.17.25, Notre Dame Law School

NDLS Communicator

The Latest News

• ND Law Global Human Rights Clinic advocates for human rights before United States International Trade Commission
• ND Law's Black Students Association celebrates Black History Month and the pursuit of justice
• Professor Jorge Barrera-Rojas defends dissertation to earn two doctoral degrees
• Notre Dame Law School's Religious Liberty Clinic secures asylum for Iranian Christian convert facing persecution

Faculty News and Briefs

• Paul Miller was cited in an important dissenting opinion by Justices Gordon, Edelman, and Steward of the High Court of Australia for his work on fiduciary obligations.
• This week, A.J. Bellia will speak on the legal implications of …

Trespass To Chattel And The Fourth Amendment, Will Baskin

Texas A&M Journal of Property Law

Like an adolescent maturing into adulthood, Fourth Amendment search doctrine has gone through phases. Scholars may debate the underlying principles that have governed each phase, but they agree that two Supreme Court decisions dominate the doctrine as it stands today: Katz v. United States and United States v. Jones. The younger of these two rivals, Jones, has caused its share of consternation. Courts have struggled to consistently apply its trespass-based test, despite the test’s seemingly simple formulation. This Note considers the Jones test in the context of personal property, or chattel, making two arguments: first, careful adherence to common-law principles …

A Constructive Trust Is Not Enough - Enacting A Slayer Statute To Better Protect A Decedent’S Heirs, Joseph William Padjune Iii

Texas A&M Journal of Property Law

This Comment explores how Texas’s common law constructive trust solution used to address the “slayer problem” (the problem that occurs when a person kills an individual they would inherit from) has some substantial limitations and explains how this system would be enhanced by enacting a complementary slayer statute. The current constructive trust doctrine fails to adequately protect a victim’s heirs, is too variable in its application, and creates too much uncertainty. By adopting the slayer statute proposed in this Comment, or one similar, the Texas Legislature can better protect a victim’s estate and their heirs. The overall aim of this …