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Restoring The Soul To Birthing In Miami: A Call For Justice For Obstetric Racism In Miami–Dade County, Jordan Brooks, Jamarah Amani, Sannisha Dale, Dr. Karen A. Scott

University of Miami Race & Social Justice Law Review

For far too many Black mothers and birthing people, U.S. hospitals are dangerous and fail to keep our Black mothers and birthing people and their babies safe, alive, and thriving during and after childbirth. The confluence of medical racism and obstetric violence—obstetric racism—leads to a disproportionate rate of predictable, preventable, and unfair death, sickness, and trauma for Black birthing people and babies in the afterlife of slavery. Obstetric racism, as defined by Davis, is both an analytic and phenomenon that describes mechanisms of subordination, control, and dominance to which Black mothers and birthing people are subjected by health systems and …

An Examination Of The Standard Of Judgment For Court–Ordered Electroshock Therapy, Anna Irving

University of Miami Race & Social Justice Law Review

No abstract provided.

Vol. 68, No. 04 (February 3, 2025)

Indiana Law Annotated

No abstract provided.

Mmu: 02/03/25–02/09/25, Student Bar Association

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Civil Rights V The First Amendment, And The Erosion Of The Belief–Action Dichotomy, Elena Lacorte

University of Miami Race & Social Justice Law Review

No abstract provided.

Medicaid Unwinding: Due Process Violations And Impacts In Florida, Emma Page

University of Miami Race & Social Justice Law Review

No abstract provided.

Neurotechnology Works Its Way Forward, Jeremy Ben Merkelson, Wendy Kearns, David Rice, Elyse Sparks

Seattle University Law Review Online

Neurotechnology is an emerging and rapidly advancing field of technology used to collect, process, and analyze brain or nervous system activity. The market is expected to reach $21 billion by 2026.

In a previous article, published in October 2023, we explored the potential of neurotechnology applications in the workplace, like electroencephalogram (EEG) headbands that monitor fatigue and boost safety, software and EEG combination technologies that creates a shortcut to the human brain and optimizes complex decision-making, and earbuds that track focus and stress.

We have continued to study and speak about these issues in various forums, and meanwhile, technology and …

Bank Fragility After Mergers, Jeffrey Jou, Teng Wang, Jeffery Y. Zhang

Law & Economics Working Papers

Do banks become more fragile after merging? By constructing a novel forward-looking measure of fragility and exploiting staggered interstate banking deregulation as exogenous shocks to bank mergers, we show that the loan portfolios of merged U.S. banks become more vulnerable to adverse economic conditions. However, merger size matters. The increase in fragility is driven almost entirely by mega-mergers of large banks, suggesting the presence of moral hazard. In addition, we find that increased geographic or portfolio diversification following mergers does not offset the increase in fragility. If anything, mergers between large banks that have significantly dissimilar portfolios can actually worsen …

Brief For Religious Liberty Scholars In Support Of Petitioners, Mark S. Storslee, Kevin T. Baine, Richard S. Cleary Jr., Ian M. Swenson, Joshua A. Hanley, Richard W. Garnett

Court Briefs

No. 24-154
Catholic Charities Bureau, Inc. v. State of Wisconsin Labor and Industry Review Commission

On Petition for a Writ of Certiorari to the Supreme Court of the State of Wisconsin

From the Summary of Argument

The First Amendment’s Religion Clauses prohibit the government from answering religious questions or discriminating among religions. At a minimum, that means courts may not dole out protection to some religious groups but not others based on favored or supposedly ‘typical’ religious activities. When administering statutory exemptions whose beneficiaries are religious organizations, courts may not gainsay organizations’ sincere religious beliefs to impose their own view …

Sunk In Battle, But The War Is Not Over: Who Owns The Moskva?, Caroline Tuckett

International Law Studies

The study of underwater cultural heritage, and that of sunken warships, has typically focused on the legal protections that surround a site in the years, or often centuries, after the sinking. The Russia-Ukraine conflict has given cause to study the topic in a more modern context. Several Russian Naval vessels have been sunk by Ukraine, the most famous being the Black Sea flagship, the Moskva, in April 2022. Following the sinking, Ukraine stated the Moskva was now a heritage site, with a Ukrainian Defence Minister joking that the wreck was simply “one more diving spot.”

This article will examine …

Journal Staff

Duke Law Journal

No abstract provided.

Ndls Communicator: Week Of 02.03.25, Notre Dame Law School

NDLS Communicator

The Latest News

• Notre Dame Law School delegation to visit Strathmore Law School, the Constitutional Court of South Africa, and the University of Cape Town
• Justice Leona Theron reflects on 30 years of democracy in South Africa at Notre Dame Law School

Faculty News and Briefs

• Mary Ellen O'Connell has published "What Remains of Law Against War" in the Georgetown Law Journal.
• Sam Bray recently presented a chapter from his book project on equity and change at the North American Workshop on Private Law Theory, held this year at Berkeley.
• Last week, Rick Garnett spoke on the Separation of Church …

By Scalpel Or Chainsaw: The Status Of Pre-Bruen Case Law In The Lower Courts, Thomas Moy

Duke Law Journal

The Second Amendment is in a state of flux. After the U.S. Supreme Court decided District of Columbia v. Heller, the lower federal courts coalesced around a means-end scrutiny test to judge the constitutionality of gun control laws. But enter New York State Rifle & Pistol Association v. Bruen. The analysis now centers around a test that focuses on text, history, and tradition. Courts have a new test with few guidelines about how to apply it.

Given the lack of guidance, courts have struggled to answer a key question: What pre-Bruen case law is still valid? Utilizing the undocumented immigrant …

Fair Notice Is A Sociopolitical Choice, Alexander Zhang

Duke Law Journal

This Article reframes a deadlocked debate about “fair notice” as a justification for statutory interpretation methods by developing a historical account of a crucial, overlooked dimension: legislatures’ and laypeople’s value judgments about notice. On one side of the debate are idealists who contend, on due process grounds, that judges should embrace interpretive methods and theories based on how well they promote fair notice. On the other side are realists who counter, on empirical grounds, that perfect notice is impossible. Each side continues to talk past the other because we lack a fleshed-out framework for evaluating when the fair-notice basis of …

Finding A Purpose In Bruen's World, Timothy J. Southam

Duke Law Journal

Fewer than seven months after the Highland Park mass shooting, the Illinois General Assembly passed the Protect Illinois Communities Act (“PICA”), a statewide ban on assault weapons and large-capacity magazines. Gun-rights advocates have characterized PICA (and other similar strong state gun laws) as unconstitutional laws intentionally enacted to defy the Supreme Court’s protection of the right to keep and bear arms. In response to such severe accusations, especially in light of New York State Rifle & Pistol Ass’n v. Bruen, this Note assesses these claims using PICA as a case study. Through an investigation of its legislative history—an investigation that …

Reparations For Project One Hundred Thousand, Eleanor T. Morales

Duke Law Journal

During the Vietnam War, the U.S. Department of Defense (“DOD”) created a new program that targeted marginalized communities, resulting in thousands of deaths and adversely impacting the lives of more than one hundred thousand others. This Article—which draws on original archival research from obscure DOD files—uncovers the origins and effects of the program called “Project One Hundred Thousand.” This research reveals that the program drafted members of impoverished communities to serve in the place of more privileged men, who received draft exemptions. The program enabled the U.S. government to continue the war at scale without incurring an unacceptable loss of …

What The Hell Is The Major Questions Doctrine?, Jack M. Beermann

Faculty Scholarship

Anita S. Krishnakumar, What the New Major Questions Doctrine Is Not, 92 Geo. Wash. L. Rev. 1117 (2024).

When the sun sets in New York City, it rises in Tokyo. Okay, maybe not exactly, but you get the idea: setting somewhere, rising somewhere else. Now substitute Chevron for N.Y.C. and the Major Questions Doctrine for Tokyo. For the past forty years, administrative law scholars have been arguing over Chevron, and now that the sun has set on that doctrine, it’s time to turn our attention to the new rising sun, the Major Questions Doctrine (“MQD”). The sudden emergence …

Designing Contract Modification, Albert H. Choi, George Triantis

Law & Economics Working Papers

For long-term commercial contracts, modification tends to be the norm rather than the exception. While modification often takes place in response to an arrival of new information, contracting parties frequently modify the terms in response to a shift in bargaining power. In this paper, we explain how the flexibility to renegotiate in response to a shift in bargaining power can facilitate long-term contracting and thereby beneficial reliance investments and risk allocation. The prospect of modification can induce contracting parties who expect their bargaining power to improve, such as from the emergence of outside opportunities, to enter into contracts earlier and …

Crimes Of Violence And Violent Crime, Erin C. Blondel

Notre Dame Law Review

Why can’t federal law define “violence”? Major federal statutes turn on whether someone was convicted of a violent crime. But judges and scholars widely agree that the law defining violence is “chaos.” This Article treats the problem as one of statutory design and construction. What’s violent is a fact-based judgment call—it’s a standard meant to be interpreted case by case through factfinding and adjudication. But Supreme Court jurisprudence increasingly treats it like a rule, insisting that courts must define violence without the facts and discretion that would give that interpretation coherence across countless unique cases.

Chaos is not inevitable. Predicate …

Erie And Aggregate Settlement In Diversity Jurisdiction Suits, John D. Spengler Jr.

Notre Dame Law Review

Over the last decades, United States federal courts have sharply curtailed the ability of parties to reach a global resolution, including through voluntary settlement, in mass tort and similar class action lawsuits. As a result, the multidistrict litigation (MDL) statute continues to play an ever-increasing role in the resolution of these mass claims. Primarily, this is because the MDL process forgoes the more strenuous requirements for class certification under Federal Rules of Civil Procedure 23(a) and 23(b). In an MDL proceeding, the Judicial Panel on Multidistrict Litigation (JPML) can order individual cases, either sua sponte or on the request of …

In Defense Of The Major Questions Doctrine, Louis J. Capozzi Iii

Notre Dame Law Review

The major questions doctrine, which requires agencies claiming important powers to identify clear authority from Congress, is transforming administrative law. Breaking with recent practice, the doctrine prevents the executive branch from issuing laws addressing pressing, novel issues without Congress’s affirmative consent.

In response, scholars have generally criticized the doctrine and questioned its legitimacy. Critics have alleged that the doctrine was fabricated by the Supreme Court without proper justification, is incapable of principled application, frustrates the intent of past Congresses to delegate broad power to agencies, aggrandizes judicial power, and hinders desirable executive branch lawmaking.

This Article disagrees with those criticisms …

May Federal Courts Answer Questions When Not Deciding Cases?, Benjamin B. Johnson

Notre Dame Law Review

Conventional wisdom says that Article III’s case-or-controversy requirement prevents federal courts from answering legal questions when they are not deciding cases. This is only partially correct. This Article shows conditions under which a federal court may answer questions even when not deciding a case. To do so, it traces the appellate power back to its origins in English common law courts and through the early American judiciary. For centuries, common law judges have answered questions sent to them by lower courts when doing so would help those lower courts to decide pending cases. In England, the “case stated” procedure facilitated …

Immunity For Imaginary Policy In Tort Claims Against The Federal Government, Gregory C. Sisk

Notre Dame Law Review

Fictional policy justifications for official negligence are regularly accepted by the federal courts to shield the federal government from liability for ordinary tortious wrongdoing. The lower federal courts have adopted an extravagant interpretation of the discretionary function exception to the Federal Tort Claims Act that applies whenever a policy implication can be theorized. Under this “susceptible to policy analysis” approach, the United States government escapes accountability through after-the-fact speculation regarding policy factors that could have played a role (but actually did not) in the harmful government conduct.

By textual command, the exception shields only government decisions “based on,” that is, …

The Solicitor General, Consistency, And Credibility, Margaret H. Lemos, Deborah A. Widiss

Notre Dame Law Review

This Article offers the first comprehensive look at cases in which the Solicitor General (SG) rejects a legal argument offered on behalf of the United States in prior litigation. Such reversals have received considerable attention in recent years, as shifts in presidential administrations have produced multiple high-profile “flip-flops”—as the Justices sometimes call them—by the SG. Even those observers who defend the SG, including veterans of the office, caution that inconsistency in legal argument poses a threat to the SG’s credibility with the Court. Our goal is to better understand the circumstances that lead the SG to change its position on …

The Equity In Corporate Law, Andrew S. Gold, Henry E. Smith

Notre Dame Law Review

It is no secret that equity is a central part of corporate law. Yet a fuller appreciation of what equity means for corporate law is still lacking. This Article offers a new account of corporate law’s equity, showing that it is a kind of meta-law—or law about law—that operates ex post to address polycentric problems, conflicting rights, and opportunism. As we argue, much of the structure of corporate law—its architecture—is explained by the need for a robust equity that can intervene where needed, while also avoiding the dangers of unconstrained judicial discretion. Corporate law maintains a careful balance, one that …

When Religious Exercise And Private Rights Collide, Brent J. Nymeyer

Notre Dame Law Review

This Note proposes that the state action doctrine—where state statutory and common law, or the judicial finding of liability thereunder, is government burdening to the same extent that a criminal law or prosecution is government burdening—should extend to always allow religious exercise claims and defenses in disputes involving only private parties. Part I lays out the development of religious exercise jurisprudence under the federal and state systems and the current landscape of jurisdictions’ treatment of religious exercise claims and defenses in private disputes.

Part II proceeds in two sections: Section A presents representative cases from criminal law and relevant areas …

Masthead

UC Law Journal

No abstract provided.

Rethinking Sovereign Veil-Piercing, George K. Foster

William & Mary Law Review

This Article undertakes a wholesale reassessment of the sovereign veil-piercing framework created by Bancec, a landmark U.S. Supreme Court case. The Bancec framework limits foreign states’ ability to insulate themselves from accountability by acting through corporate entities. Plaintiffs often need to satisfy Bancec to secure jurisdiction over sovereigns or enforce rulings against them, but rarely succeed. The Author argues that one reason why is that lower courts are reading the case too narrowly. Specifically, some courts are conflating the Bancec framework with the more restrictive alter ego doctrine. In addition, some courts are insisting on certain formal indicia of …

Confronting Catastrophic Risk: The International Obligation To Regulate Artificial Intelligence, Bryan Druzin, Anatole Boute, Michael Ramsden

Michigan Journal of International Law

While artificial intelligence (“AI”) holds enormous promise, many experts in the field are warning that there is a non-trivial chance that the development of AI poses an existential threat to humanity. Existing regulatory initiatives do not address this threat but instead merely focus on discrete AI-related risks such as consumer safety, cybersecurity, data protection, and privacy. In the absence of regulatory action to address the possible risk of human extinction by AI, the question arises: What obligations, if any, does public international law impose on states to regulate its development?

At present there is no scientific consensus as to the …

Reforming Copyright Or Toward Another Science? A More Human Rights-Oriented Approach Under The Rebspa In Constructing A "Right To Research" For Scholarly Publishing, Klaus Beiter

Joint PIJIP/TLS Research Paper Series

This article identifies copyright impediments existing in the sphere of science, and then tentatively suggests how such impediments may be overcome. It focuses on scholarly publishing only, and here primarily on digital content, and specifically asks whether expensive commercial scholarly publishers continue to “add value” to research in the digital era. The deficits of copyright law and potential solutions thereto are assessed in the light of the right of everyone “to enjoy the benefits of scientific progress and its applications” (REBSPA) as laid down in Article 15(1)(b) of the International Covenant on Economic, Social and Cultural Rights (ICESCR) of 1966. …