Digital Commons Network^™

The Federal Rules Of Evi-Dance: Exploring And Reimagining Evidence Law Through Music, And Proposing Amendments To Rule 604, Brian C. Potts

Suffolk Journal of Trial and Appellate Advocacy

No abstract provided.

Shotspotter In The Courtroom: Addressing The Evidentiary Challenges Of Acoustic Gunshot Detection Technology, Samantha Mazzone

Suffolk Journal of Trial and Appellate Advocacy

No abstract provided.

Legalizing Magic Mushrooms: A Different Set Of Laws For A Different Kind Of Drug, Edward S. Adams

Articles

This Article explores the regulation of the cannabis industry, highlighting its origins, history, and shortcomings. The Article then compares the cannabis and psilocybin industries, arguing against the replication of the cannabis regulatory structure for psilocybin. Instead, this Article will propose tailored regulatory solutions designed to address the unique characteristics of psilocybin and foster a well-regulated, safe, and effective market.

Should I Have Held Your Hand Or Can You Hold Your Own?: The Growing Confusion Over The Copyright Powers Songwriters Maintain Over Their Works, Mark Galinovsky

Cardozo Law Review de•novo

As online streaming and digital downloads continue to dominate the music business, songwriters are increasingly left to fight each other for tiny cuts of the profits. Additionally, a lack of consistent judicial rules and standards when adjudicating copyright infringement claims make litigation results uncertain, causing even potentially victorious defendants to agree to expensive settlements and frivolous grants of songwriting credits. This Note argues that in order to protect the future creative output of the music industry, judges and legislators should prioritize the dwindling power songwriters have over control of their original works of authorship.

A Third Possibility: The Press Clause At The Founding, Matthew L. Schafer

Fordham Intellectual Property, Media and Entertainment Law Journal

With the rise of history and tradition at the Supreme Court, scholarship purporting to define historical fact is likely to have outsized influence on the development of constitutional law. Underdeveloped constitutional rights like the First Amendment’s Press Clause are especially susceptible to such influence as they lack a precedential counterweight. While Press Clause jurisprudence is shallow, historical research about the Press Clause is not. For decades, scholars who have considered the Press Clause’s historical meaning have generally concluded that the record is quite vague, and, for that reason, cautioned against absolutist conclusions as to its original understanding. …

A Third Possibility: The Press Clause At The Founding, Matthew L. Schafer

Fordham Intellectual Property, Media and Entertainment Law Journal

With the rise of history and tradition at the Supreme Court, scholarship purporting to define historical fact is likely to have outsized influence on the development of constitutional law. Underdeveloped constitutional rights like the First Amendment’s Press Clause are especially susceptible to such influence as they lack a precedential counterweight. While Press Clause jurisprudence is shallow, historical research about the Press Clause is not. For decades, scholars who have considered the Press Clause’s historical meaning have generally concluded that the record is quite vague, and, for that reason, cautioned against absolutist conclusions as to its original understanding. More recently, though, …

The Invisible String: How Litigation Funders In Patent Suits Pose A National Security Risk, Cosette Mclaughlin

Fordham Intellectual Property, Media and Entertainment Law Journal

This Note will address why the Supreme Court should modify Rule 7.1 of the Federal Rules of Civil Procedure to require third-party litigation funding (TPLF) funders and agreements to be disclosed to the judge and the opposing party. This amendment would mitigate the national security risk posed by foreign adversaries acting through TPLF in patent suits by eliminating the veil of secrecy. The semiconductor industry acts as an illustration of the benefits of this modification.19 In addition, if TPLF funding were required to be disclosed to all involved, conflict identification would become significantly easier. Full transparency in patent litigation TPLF …

Doctrine, Data, And The Death Of Dupont, Thomas A. Reichert

Fordham Intellectual Property, Media and Entertainment Law Journal

For fifty years, trademark opinions have claimed to apply a comprehensive thirteen-factor test for trademark confusion. They are deeply mistaken. Using AI-powered analysis of over 4,000 TTAB inter partes decisions (2000–2025), this Article proves what practitioners have long suspected: in Section 2(d) adjudication, the test has collapsed to just two factors.

A simple categorical rule predicting confusion if and only if both mark similarity (Factor 1) and goods/services relatedness (Factor 2) (hereinafter “F1” and “F2” in figures, tables, and formulas) favor confusion achieves 99.55% accuracy across 4,651 comparisons. Cross-validated logistic regression confirms the pattern: a two-factor model achieves 99.46% accuracy, …

Discrimination In The Trademark Id Manual, Rachael Dickson

Fordham Intellectual Property, Media and Entertainment Law Journal

Using evidence drawn from the USPTO’s treatment of 221 identifications submitted for inclusion in the Trademark ID Manual (including 43 this Author submitted on their own and as part of a team), this Article, the first ever written on the ID Manual, argues that the USPTO’s administration of the Manual systematically disadvantages trademark applicants offering lawful but socially disfavored goods or services, such as those relating to cannabis, sexual health, or “vice.”

By deliberately refusing to include identifications of goods and services relating to entire categories of commerce in the ID Manual, the USPTO imposes higher costs, greater uncertainty, and …

Music Is Medicine: Addressing Legal Challenges In An Emerging Clinical Practice, Basha Goldwater

Fordham Intellectual Property, Media and Entertainment Law Journal

Music is universally experienced, and most will recognize its profound personal impact; yet, music’s broader influence on society is yet to be fully explored. People may listen to music when they are sad, when they are seeking motivation, or as a way to relax. However, music extends beyond expression, entertainment, and an outlet for emotions. Research indicates that music can offer substantial benefits to patients in a plethora of medical situations.

Part I of this Note will explain the usefulness of music as medical care, its advantages, and the broad range of institutional support music-based medicine has garnered. Part II …

Indigenous Land Seizure & Environmental Injustice: Impacts Of Settler Colonialism, Lydia Moorman

Journal of Earth and Life Science

The fields of conservation and environmentalism prioritize ecosystem health, yet both emerged from western frameworks that displaced and criminalized Indigenous land stewardship. The idealization of “pristine wilderness” narratives served to justify the removal of Indigenous peoples from their homelands and erased millennia of sustainable land stewardship that had maintained ecological balance long before western conservation existed. These narratives not only misrepresented Indigenous relationship with land but also constructed a false dichotomy between humans and nature that positioned Indigenous presence as a threat rather than a source of ecological knowledge. Simultaneously, anthropogenic expansion; such as pipelines, mining, railroads, and other extractive …

Powering The Machine, Draining The Planet: Whether U.S. Environmental Law Is Equipped To Regulate The Energy And Water Demands Of Ai Data Centers, Michael Marcu

Journal of Earth and Life Science

Artificial intelligence (AI) data centers have become one of the United States' fastest-growing and least-regulated sources of environmental stress. In 2024 alone, U.S. data centers consumed 183 terawatt-hours (TWh) of electricity more than the entire nation of Pakistan and consumed an estimated 17 billion gallons of water (IEA, 2025; Berkeley Lab, 2024). By 2030, electricity demand from these facilities is projected to reach 426 TWh, a 133% increase in six years (Pew Research Center, 2025). This paper examines whether the existing U.S. environmental regulatory framework put by the National Environmental Policy Act (NEPA), the Clean Water Act (CWA), and the …

Not All Sunshine In Wisconsin: The Cloudy Public Disclosure Predicament Surrounding Trade Secrets, Amelia S. Murray

Marquette Intellectual Property & Innovation Law Review

This Comment will explore the current landscape surrounding trade secret protections in Wisconsin Open Records Law requests. The lack of access to state-protected trade secrets, and overall lack of transparency, effectively endangers the general health and safety of the Wisconsin public and environment. When a request is made for information under the Wisconsin Open Records Law pertaining to state information protected by trade secret, and the requester is denied access to such information due to its trade secrecy status, the state should have to disclose trade secret information if it poses a greater danger to environmental health, human health, or …

From Software To Multimedia: How Warhol's Refinement Of The First Fair Use Factor Upholds Prior Rulings Across The Copyright Landscape, Graham Lemke

Marquette Intellectual Property & Innovation Law Review

“Fair use” is a commonly invoked term of legal art that dates back to the 19th century and has undergone significant transformation since its inception. Specifically, the first factor of fair use, encompassing transformativeness, purpose, and commercial use, has generated significant circuit splits, leading to disparate outcomes for litigants depending on the presiding circuit. In an attempt to alleviate the unharmonious application of the fair use doctrine, the Supreme Court of the United States granted certiorari to a 2023 Second Circuit case involving the famed Andy Warhol Foundation. However, in the wake of the opinion’s release, critics have claimed that …

Dwight King Service Award, Black Law Students Association, Ndls

Student, Faculty, and Staff Awards

Presented by Notre Dame Black Law Students Association to a BLSA member who has devoted considerable time, energy, and attention to both BLSA and the Notre Dame Law School community.

Graciela Olivarez Award, Hispanic Law Students Association, Ndls

Student, Faculty, and Staff Awards

The Notre Dame Hispanic Law Student Association, HLSA, annually recognizes The Outstanding Hispanic Lawyer or Judge that best exemplifies the principles and ideals of the pioneer for whom this award is named, including commitment to community service, demonstration of the highest ethical and moral standards, and dedication to justice.

National Association Of Women Lawyers Award, Notre Dame Law School

Student, Faculty, and Staff Awards

For scholarship, motivation, and contribution to the advancement of women in society.

Edward J. Kelly Prize In Elder Law, Notre Dame Law School

Student, Faculty, and Staff Awards

The Elder Law Prize is intended to advance the study of elder law and to encourage and assist Notre Dame Law students who may have an interest in this field. This award is given annually to the NDLS student who has written the best essay, article, or legal brief on a topic relating to elder law. Due to a gift from the Retirement Research Foundation on behalf of Mr. Ed Kelly, the winner of the award will receive a monetary prize.

Allison T. Dang Award Of Service, Asian Pacific American Law Students Association, Notre Dame Law School

Student, Faculty, and Staff Awards

Presented to a student who has demonstrated exceptional dedication, service, and support to the APALSA community and fellow AAPI (Asian American and Pacific Islander) students. This award recognizes an individual who has selflessly worked to support the needs of others and embody a spirit of care and service.

Our Clients’ Rights On Mute: Virtual Court, Due Process, And Judicial Discretion, Beena I. Ahmad, Julia Elhai

City University of New York Law Review

The use of videoconferencing as a substitute for in-person appearances began in immigration proceedings in the mid-1990s. During the height of the COVID-19 pandemic, its use expanded significantly in the criminal and civil contexts, when both state and federal courts invested heavily in the technology needed to conduct proceedings remotely. As we have exited the pandemic, courts have eagerly embraced virtual proceedings to reduce their overburdened dockets. Drawing from our experiences in federal and state court, we argue that judges should not be granted discretion to proceed by videoconferencing.

We posit that there is too great a danger that the …

The Prohibition Of Force Is The First Principle Of International Humanitarian Law, Mary Ellen O'Connell

Journal Articles

This article tracks the decline of respect for the prohibition of force, IHL, and human rights law. At the same time, it will clarify the inter-relationship of the three bodies of international law relevant to armed conflict. The article also considers why presidents first began to “abandon peace.” The evidence indicates that a major reason involves the influence of realist political theory. Realism asserts that national security is attained by amassing and demonstrating superior military capability. A president who follows the theory will defy the law against the use of force. Following realism is also at odds with the empirical …

Informed Applicants: Anti-Discrimination Enforcement Based On The Use Of Criminal Records, Benjamin David Pyle

Faculty Scholarship

Navigating the labor market with a criminal record is treacherous. Countless job applicants will be turned down immediately after a potential employer learns they have had contact with the criminal legal system. Criminal records reflect and exacerbate long-standing racial and economic inequalities in the United States. Thus, the use of records in employment decisions will often implicate anti-discrimination laws. However, successfully enforcing these protections requires job applicants to, at minimum, understand why they were not hired. Many applicants never learn why they were not hired and thus will never be able to protect their rights. This Article argues that understanding …

Third-Party Funding: Balancing Transparency, National Security, And Access To Justice, Victoria Sahani

Faculty Scholarship

Many lawmakers who have recently become aware of the multi-billion-dollar global third-party funding industry are raising new national security concerns that further complicate preexisting, longstanding debates about transparency, disclosure, access to justice, and the best way to regulate third-party funding. In response, this Article briefly asserts three main points relating to the question of how best to regulate third-party funding. First, this Article explains the third-party funding industry, including its global regulatory landscape and how it serves three distinct populations: consumers, businesses, and law firms. Second, this Article explains that third-party funding is one tool that can help expand access …

Sidelining The Public, Anya Bernstein, Glen Staszewski, Wendy E. Wagner

Faculty Scholarship

This Article challenges the widely held view that Congress is the American government’s institution closest to the people, while administrative agencies are unaccountable and unresponsive. Providing a systematic, side-by-side institutional analysis, we compare the actual practices and capacities of these two institutions to engage affected publics in policymaking. We find that despite the democratic bona fides of an elected legislature, agencies possess superior capacities, more evolved practices, stricter rules, and stronger incentives for meaningful public engagement. Yet these capacities have been eroded—particularly over the last 50 years—by intensifying legal, political, and managerial obstacles. The Supreme Court and political actors have …

Privacy’S Autonomy Thicket: Disentangling Choice, Consent And Control, Jordan Francis, Woodrow Hartzog, Neil Richards

Faculty Scholarship

When it comes to talking about autonomy, privacy law could use a little clarity. Its discourse uses terms like “choice,” “consent,” and “control” to evoke autonomy, but these terms are too rarely defined and too often used interchangeably, even though they can mean very different things. The three terms have become entangled in a way that has become confusing and counterproductive. We call this problem “privacy’s autonomy thicket,” and it matters because it encourages talking past each other in policy debates, enabling the redefinition of these terms in misleading ways that produce weak and disempowering “notice and choice” regimes.

In …

Bloodstain Pattern Analysis And The Gatekeeping Role Of Canadian Courts, Sara Gordon

All Faculty Publications

Despite its long history of admission throughout North America, there appears to be no published Canadian case subjecting bloodstain pattern analysis to the special scrutiny Canadian law demands for novel or contested scientific evidence. Instead, courts have admitted the evidence based largely on the training and experience of forensic examiners, taking it for granted that the field is sufficiently reliable. However, the application of the White Burgess framework reveals that there are serious and severe concerns about the underlying scientific validity of the technique which should render it generally inadmissible. At Stage One of White Burgess, bloodstain pattern analysis fails …

Race And Racism In Canada’S Immigration Detention System, Efrat Arbel, Prasanna Balasundaram, Hanna Gros, Nana Yanful

All Faculty Publications

Race and Racism in Canada's Immigration Detention System is the first comprehensive, independent study to examine race and racism in Canada's immigration detention system. Grounded in rigorous legal analysis and qualitative research, the study draws on interviews with 50 participants, including people with lived experience of immigration detention, as well as lawyers, paralegals, and service providers who work in immigration detention. The research was guided by an advisory board of people with lived-experience in immigration detention and co-led by a collaborative research team.

Safeguarding Public Pensioner Standing After Thole, Evelyn L. Stein

Vanderbilt Law Review

Today, public American pension funds hold over $6 trillion dedicated to rewarding the labor and stabilizing the retirements of millions of employees. These funds are facing increased scrutiny as activists draw more awareness to controversial investment strategies, resulting in litigation by plaintiffs arguing funds inappropriately prioritize goals other than financial returns. Structurally, many public funds operate with a defined benefit (DB) model, meaning fund beneficiaries are guaranteed specific payouts based on factors such as years of service and age at retirement. Because of this DB model, such litigation has been stymied by the U.S. Supreme Court's decision in Thole v. …

“Spinning Wheel Got To Go Round”: Developments In The Law Affecting Electronic Payments And Financial Services, Sarah Jane Hughes, Tom Kierner, Stephen T. Middlebrook

Articles by Maurer Faculty

The past year reminds us of the rock lyrics from “Spinning Wheel” on Blood, Sweat & Tears’s 1968 self-titled record—“What goes up, must come down/Spinning Wheel got to go round”—because there have been many changes in strategy and reversal of policy since President Trump’s inauguration in January 2025. Our Survey documents these changes and reversals as they affect electronic payments and financial services. This year’s Survey also reports on warnings from state and federal regulators aimed at bank and non-bank providers of consumer financial services. Part II examines an FTC enforcement action related to the unfair and deceptive marketing of …

Two Cheers For Cox V. Sony, James Gibson

Law Faculty Publications

There’s a lot to dislike about the Supreme Court’s opinion in Cox Communications, Inc. v. Sony Music Entertainment. It mischaracterizes, oversimplifies, and ignores precedent. It fails to engage with important arguments. It mangles the meaning of “intent.” And it introduces uncertainty into the workings of secondary liability across other intellectual property regimes.

For these reasons, the decision doesn’t deserve three cheers. But it deserves two. Because in two important ways, the Supreme Court has succeeded. First, the opinion fixes some misguided appellate court holdings by articulating a relatively workable standard for future copyright cases involving secondary liability. Second, despite …