Digital Commons Network^™

Periodic Adjustments — Treaties And Other Issues, Reuven S. Avi-Yonah, Jeffery M. Kadet

Articles

In his May article, Michael McDonald, a former managing director at Ernst & Young and current adjunct professor at the University of Virginia School of Law, criticized the IRS’s recently announced method for applying the commensurate with income (CWI) requirement that addresses the widespread underpricing of intangibles.1 His analysis questioned the IRS’s interpretation of section 482. McDonald argues that, until 2025, Treasury and the IRS applied CWI in a manner consistent with the arm’s-length principle despite congressional misgivings about the arm’s-length principle that were not only expressed in the legislative history of the Tax Reform Act of 1986 but were …

A Legal Comedy Of Errors: Foia’S Judicial Drama Over Who Controls The Oversight Script, Caroline Savini

Villanova Law Review (1956 - )

No abstract provided.

Ndls Communicator: Week Of 06.29.26, Notre Dame Law School

NDLS Communicator

The Latest News

• Olivia Rogers ’23 J.D. to clerk for U.S. Supreme Court Justice Amy Coney Barrett
• Notre Dame Law School Announces Faculty Promotions for Susan Azyndar and Msgr. John Paul Kimes
• ND Law’s Program on Church, State & Society Announces 2026 Writing Competition Winners
• Notre Dame Law School is Cultivating Hope

Faculty Briefs

• Paolo Carozza
• Francisco Urbina
• Mary Ellen O'Connell
• Jeff Pojanowski
• Haley Proctor
• Derek Muller
• Rick Garnett
• Ashley Sanchez
• Susan Azyndar & Yan Yu
• Carter Snead
• Emily Bremmer
• Emilia Powell
• Howard Glickstein

ND Law in the News

• Notre Dame Law School was mentioned in coverage of Indiana’s eviction …

[Early Bird] The Texas Common Ownership Litigation: Sustainability, Competition, And The Boundaries Of Asset Manager Capitalism, Federico Ghezzi

Yearbook of Antitrust and Regulatory Studies

This article analyzes the recent attempt by the Texas Attorney General to invoke the common ownership doctrine as a new antitrust weapon against large institutional investors allegedly engaged in coordinated ESG strategies. The case represents a peculiar reversal of the traditional logic of the theory: rather than being used to constrain horizontal shareholdings that may reduce competition, common ownership is deployed here to challenge collective action aimed at promoting environmental sustainability. The paper situates this development within the broader debate on the anticompetitive effects of horizontal ownership, briefly examining the economic assumptions underlying the theory, the limits of its empirical …

Recent Developments, Steven H. Jacobs

Arkansas Law Review

Recent Developments in Arkansas Law

Anchoring’S Absurd Influence On Judging, Jeffrey J. Rachlinski, Andrew J. Wistrich

Arkansas Law Review

Society demands much from its judges. Notably, judges should never be illogical or inconsistent. The heart of what we expect of a judge is to apply the law to the facts in a logical and consistent way. The human mind, however, is not a giant syllogistic machine. People are obviously capable of using deductive logic, but decades of research on judgment and choice indicate that commonly used cognitive strategies to make decisions do not conform to the dictates of deductive logic. People rely on mental shortcuts, rather than logic. These shortcuts can be efficient and useful, but they do not …

A New Prescription: Arkansas Law On Pharmacy Benefit Managers, Emilee Webb

Arkansas Law Review

Seven thousand pharmacies have closed throughout the United States since 2019. This number includes both local pharmacies and larger chains. The effect of both types of closures, though, is the same—pharmacy deserts. A pharmacy desert can occur in all types of areas; it simply means that consumers lack “reasonable access” to a pharmacy. The usual standard is a pharmacy located more than one mile away in urban areas, two miles away in suburban areas, and ten miles away in rural areas. However, an objective mile range is not always dispositive of a pharmacy desert. Even if a pharmacy is located …

Judicial Rhetoric: Writing Persuasive Opinions, Gerald Lebovits

Arkansas Law Review

In 1947, Judge George Rose Smith denounced, in the Arkansas Law Review, the “dearth of material concerning the mechanics of writing a judicial opinion” as a “striking omission in legal literature.” He was right.

The lack of attention given to the judicial opinion-writing process back then was hard to justify. Judges spend much of their time writing decisions. Decisions are important. They determine rights and responsibilities, as well as resolve controversies. Scholars have written about every aspect of judging and legal issue—except one of the most important ones: how to decide a case and justify the decision. Judicial opinions set …

Promoting A Rhetoric Of Judicial Legitimacy In Pro Se Litigation, Alistair E. Newbern

Arkansas Law Review

In recent months, headline after headline has decried twin threats to the federal judiciary: declining public trust in the courts and escalating threats to judges’ personal safety. The public’s opinion of the Supreme Court reached “close to a three decade low” in 2025, while Americans’ confidence in the federal judiciary as a whole “dropped to a record-low 35% in 2024.”

In his 2024 Year End Report on the Federal Judiciary, Chief Justice John Roberts identified a recent uptick in four areas of “illegitimate activity” that “threaten the independence of judges on which the rule of law depends: (1) violence, (2) …

Intellectual Humility By Design: How Courts Earn Legitimacy And Improve Decisions, Steve Leben

Arkansas Law Review

Courts decide disputes as one branch of our government. Their authority depends not only on getting the outcome right but also on public acceptance of their authority. In a time when confidence in institutions is under pressure, courts cannot assume that legitimacy will take care of itself. They must earn it—case by case—through both the substance of what they decide and the way they exercise authority in public view.

A large body of procedural-justice research explains one side of that equation. People are more willing to accept court decisions, even unfavorable ones, when the process communicates voice, neutrality, respect, and …

The Rise Of Options Contracts In Sports, The Post-Murphy Regulatory Conundrum, And Implications On Federalism, Scott Barboza

UNH Sports Law Review

The Supreme Court’s decision in Murphy v. N.C.A.A. dismantled the federal prohibition on state-authorized sports betting and returned its primary regulatory authority over to the states. Following Murphy, states adopted widely varying sports-betting regimes. At the same time, advances in financial technology and the growing popularity of prediction markets created a new form of event-based speculation operating outside the traditional sportsbook model. Platforms such as Kalshi began offering “yes-no” contracts tied to sporting outcomes through federally regulated exchanges overseen by the Commodity Futures Trading Commission, framing such products not as wagers, but as financial derivatives governed by the Commodity Exchange …

The Independence Of Supervisory Authorities: A Comparative Analysis Of Morocco's Law 09-08 And The European General Data Protection Regulation, Zakariyae Hamdani, Karim Seffar

Revue Marocaine de Droit, d'Economie et de Gestion (Moroccan Journal of Law, Economics and Management)

The effectiveness of personal data protection presupposes the establishment of supervisory authorities endowed with substantial independence, guarantors of fundamental rights and capable of preventing the risks inherent in data processing. However, the comparison between the European GDPR and Moroccan Law No. 09-08 reveals a manifest institutional asymmetry. Indeed, European authorities operate within a substantially more comprehensive normative framework, characterised by enshrined autonomy, extended prerogatives and enhanced operational efficiency. Conversely, the Moroccan CNDP remains afflicted by structural deficiencies: institutional dependence, lack of coercive powers and budgetary insufficiency. Consequently, this comparative investigation aims to identify the cardinal principles likely to inform a …

Deepfake: A Practice On The Edge Of Legality, Bouthaïna Aaziz

Revue Marocaine de Droit, d'Economie et de Gestion (Moroccan Journal of Law, Economics and Management)

Deepfakes – hyperrealistic videos manipulated using deep learning algorithms – raise significant legal challenges touching on human rights and legal governance. A deepfake usurps the identity of its victim to exploit their credibility and reputation. This article examines the applicable legal framework, first identifying pre-existing rules from Moroccan law (civil liability, personal data protection under Law No. 09-08, criminal provisions of the Penal Code and Press Law No. 88-13) that can be applied to deepfakes, and then advocating for the adoption of an adapted legal framework. The author distinguishes between creative deepfakes (requiring informed consent) and manipulative deepfakes (requiring criminal …

Requalification Of Employment Relations On Digital Platforms – Commentary On The Ruling Of The Social Chamber Of The French Court Of Cassation Of 4 March 2020, Appeal No. 19-13.316, Abdelhadi Al Hantali El Idrissi

Revue Marocaine de Droit, d'Economie et de Gestion (Moroccan Journal of Law, Economics and Management)

Despite the efforts made by legislators to facilitate the task of qualifying the employment contract for judges, the judge's role in this qualification process remains primordial, as they face hybrid and increasingly complex situations that may fall into several contradictory contractual categories not anticipated by the law. This article examines a landmark ruling by the Social Chamber of the French Court of Cassation of 4 March 2020 (Appeal No. 19-13.316), in which the Court confirmed the requalification of a partnership contract between an Uber driver and the company into an employment contract. The analysis is structured around three complementary phases: …

The Legal Challenges Of Blockchain In Relation To The Legal Professions, Hind Tak-Tak, Hanane Jalal

Revue Marocaine de Droit, d'Economie et de Gestion (Moroccan Journal of Law, Economics and Management)

Blockchain technology was initially conceived as a disintermediation tool based on algorithmic trust, aiming to challenge the traditional role of trusted third parties in legal and economic relationships. By relying on distributed, immutable, and transparent ledgers, blockchain claims to offer an alternative to centralized institutions, particularly in the fields of evidence, contracts, and authentication. However, a legal analysis demonstrates that this promise of disintermediation remains largely relative. While blockchain enables technical certification of data and the automated execution of obligations through smart contracts, it does not ensure valid contract formation, effective protection of the weaker party, or compliance with the …

Gender Perspective(S): Lessons From International Human Rights Law To Defend Against Pregnancy Related Prosecutions, Megan Osadzinski

Northwestern Journal of Human Rights

The criminalization of pregnancy outcomes—such as miscarriages, abortion, obstetric emergencies, and stillbirth—is a violation of fundamental human rights guarantees; including the right to a fair trial when read in conjunction with the right to equality and the right to health. This article outlines state obligations under international human rights law toward women charged in pregnancy prosecutions, translating them into national criminal defense strategies using a gender perspective. Using intersectional theory, this article calls for the use of a gender perspective to challenge such prosecutions as unlawful gender-based discrimination and a gendered violation of due process, using the case study of …

Comparative Analysis Of Freedom Of Thought, Conscience, And Religion In India, Pakistan, And Bangladesh, Abhishek Chakrabarti

Northwestern Journal of Human Rights

The freedom of thought, conscience, and religion is a fundamental human right enshrined in Article 18 of The Universal Declaration on Human Rights (UDHR). However, religious minorities in South Asia are often deprived of this fundamental right. Muslims in India, Ahmadiyyas, Hindus, and Christians in Pakistan, and Hindus in Bangladesh face challenges including educational marginalization, economic and political marginalization, and social stigma in the society. The Note presents a comparative analysis of the freedom of thought, conscience, and religion across the three most populous countries in South Asia–India, Pakistan, and Bangladesh–that also share a long cultural, linguistic, and religious history. …

From Maps To Meadows: Ecologically Literate Zoning And The Regeneration Of Wildlife Habitats, Jonathan Rosenbloom

Cleveland State Law Review

For more than a century, zoning has shaped the American landscape, often at the expense of wildlife and ecosystems. Rooted in legal doctrines that treated animals as property and nature as a raw material, zoning codes have fragmented habitats, erased migration corridors, and accelerated biodiversity loss. At the same time, federal protections are narrowing, leaving critical gaps in environmental governance. This Article argues that local governments possess both the authority and the obligation to respond. By embedding ecological principles into zoning—through conservation districts, wildlife corridor protections, wetland buffers, pollinator protections, dark skies, wildlife fencing, habitat restoration, and others—municipalities can transform …

An Era Of Silent Overruling: Lack Of Transparency In The Supreme Court And The Expanding Unworkability Doctrine, Sydney Washburn

Cleveland State Law Review

This Note examines the Supreme Court’s growing practice of “silent overruling," the effective displacement of precedent without explicit acknowledgment, and argues that this phenomenon threatens transparency, stability, and public trust in the judiciary. While the doctrine of stare decisis is intended to promote consistency and predictability, the Court has increasingly relied on the vague and discretionary “unworkability” doctrine to justify departing from precedent without clearly articulating its reasoning. Focusing on the Court’s recent decision in City of Grants Pass v. Johnson, this Note argues that the Court silently overruled Robinson v. California while purporting not to reconsider it. In …

Studying Noncitizens: Immigration, The University, And The First Amendment, Peter Margulies

Cleveland State Law Review

From its campaign against anti-war protesters in World War I to the present, the government has tried to restrict the pure political speech of noncitizens, defined as noncitizens’ expression of views about the structure and policies of the U.S. government and governments of foreign nations. Threats to academic freedom are also a hallmark of government action in this domain. Taking a page from this book, the Trump administration has targeted noncitizen students who participated in campus protests against Israel’s military actions in Gaza after Hamas’s brutal attacks on October 7, 2023.

The Trump administration’s effort has viewpoint discrimination at its …

Unfriending The Kids: The Problematic Race To Childproof Social Media, Randolph A. Robinson Ii

Cleveland State Law Review

A growing number of states have recently enacted new laws with the goal of protecting young people from potential harm allegedly caused by social media use. These laws are diverse in their approaches but broadly seek to limit youth access to social media platforms by imposing age verification and parental consent requirements. These laws directly implicate the First Amendment rights of both young users who will no longer be able to access speech or speak on social media platforms as well as adult users who must now submit to age verification to access these quintessential forums for political discourse.

These …

Beyond Refusal Or Acceptance: Reformulating Administrative Silence In Indonesia From A Comparative French Model, Dian Utami Mas Bakar, Anna Erliyana, Dian Puji N. Simatupang, Armand Desprairies

Hasanuddin Law Review

The administrative silence is constructed as a legal fiction that originated as a negative (silence as refusal) and has since developed into a positive (silence as acceptance). In European administrative law, no system operates exclusively based on one legal fiction. Both negative and positive fictions are employed with defined limitations, as in France. Conversely, in Indonesia, these fictions are considered conflicting and override each other due to complex regulations and undefined limitations, leading to ambiguity. Therefore, this article aims to reformulate the concept of administrative silence in Indonesia through a comparative doctrinal legal research approach. The findings proved that both …

Aging Alone In Malaysia: Social Challenges And Legal Protections, Jal Zabdi Mohd Yusoff, Zulazhar Tahir, Siti Zaharah Jamaluddin

Hasanuddin Law Review

According to The Japan Times, nearly 28,000 elderly individuals in Japan will die alone in the first half of 2024. This alarming trend is not unique to Japan; many countries, including Malaysia, are facing the challenges of an aging population. As Malaysia approaches becoming an aging nation, issues affecting the elderly, particularly those living alone, demand urgent attention. While not all elderly people face the same circumstances, some enjoy stable finances or live with their family, while others live in isolation due to various factors, such as remaining unmarried, widowhood, or estranged familial ties. Some are simply separated by their …

Rejecting Salinas V. Texas’S Catch-22: Towards State Constitutional Protections For Silence In New Mexico, Kayla Herring

New Mexico Law Review

The landmark United States Supreme Court case, Miranda v. Arizona, protects individuals’ constitutional rights in coercive environments, like custodial interrogations, where law enforcement officers apply immense psychological pressure through specialized techniques. However, subsequent caselaw distorts Miranda’s intent to enable prosecutors to comment on silence. Doing so divorces Miranda from the reason the United States Supreme Court established Miranda warnings in the first place. This subsequent caselaw narrows individuals’ constitutional right against having their silence used against them in later criminal proceedings to imply guilt based on the custodial framework established in Miranda. Salinas v. Texas is one of those subsequent …

Animal Ethics And The Lowest Common Denominator, John O. Adenitire

Animal Sentience

This commentary assesses the pragmatic framework proposed in Jonathan Birch’s The Edge of Sentience (2024). Celebrating the book's exceptional clarity, scientific rigor, and profound real-world impact on UK legislation, I nevertheless have some questions about the method by which Birch arrives at his policy recommendations for animal protection. In seeking an overlapping consensus between deeply divergent ethical and credal viewpoints, the framework risks defaulting to a minimalist, lowest-common-denominator standard of protection for animals. Birch also risks drawing the standard even lower by including serious academic positions in animal ethics that deny moral status for animals altogether. A rights-based approach offers …

Front Matter, New Mexico Law Review

New Mexico Law Review

No abstract provided.

Misinterpreting Immigration Law, Michael Kagan

New Mexico Law Review

Although Congress bears primary responsibility for the convoluted nature of America’s immigration laws, immigration law has been rendered even more incoherent through inconsistent interpretation. During the reign of Chevron deference, the federal courts, the Board of Immigration Appeals and various Attorneys General pushed in different directions, with textualist, libertarian, and restrictionist impulses holding sway on different major interpretive questions. The result is that immigration law is more internally incoherent and more divorced from popular opinion than is necessitated by the text of the Immigration and Nationality Act. The end of Chevron deference offers some potential for the federal courts to …

Boycott Governance, Carlos Berdejó

New Mexico Law Review

Despite the power they wield in modern society, corporations are hardly democratic institutions. Their governance structure is designed to further the interest of a narrow set of stakeholders, leaving little room for safeguarding the interests of other constituencies. Moreover, the power to manage corporate affairs rests in the hands of a few individuals who enjoy broad discretion and face limited accountability. This decision-making structure fosters an environment that favors the pursuit of profits at the expense of the interests of those who lack access to the corporate governance framework. Since infiltrating this governance mechanism to influence a firm’s decision-making is …

On The Securitization Of Residential Real Property, Luke Maher

New Mexico Law Review

This article aims to reframe the scholarly discussion about securitizations—transactions in which multiple passive investors use a special purpose entity to take passive fractional ownership shares in one or more assets—in the context of residential real property interests. Residential real property securitizations (including mortgage-backed securities and real estate investment trusts) are relatively modern financial instruments and so are relatively underexamined from a policy perspective, and this article seeks to evaluate whether residential real property interests are amenable to securitization at all, concluding that they are not. In so doing, this article uses the principles of property law to present a …

Pixels And Property Rights: Resolving Social Media Ownership Disputes Between Employers And Employees Through Traditional Property Law Frameworks, Brittany Kjerstad Mcknight

New Mexico Law Review

Social media accounts have become valuable business assets, yet courts remain divided on how to resolve disputes over their ownership. In employer-employee contexts, some courts have adopted multi-factor tests to determine whether an account belongs to the business or the individual. However, these tests create inconsistent and unpredictable results, leaving businesses and employees uncertain about their rights. Courts should reject ad hoc multi-factor tests and instead rely on traditional legal frameworks, specifically property, contract, and agency law, to resolve social media ownership disputes. By treating social media accounts as non-transferable, revocable licenses governed by contractual terms, courts can apply established …