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Ndls Communicator: Week Of 11.03.25, Notre Dame Law School

NDLS Communicator

The Latest News

• ND Law Professor Jimmy Gurulé discusses Exoneration Justice Clinic's work in an interview with renowned journalist Carmen Aristegui
• The Global Human Rights Clinic participated in a series of high-level engagements during International Law Week at the United Nations Headquarters in New York.

Faculty Briefs

• Mary Ellen O'Connell
• Daniel Slate
• Emily Bremer
• Christine Venter
• Nicole Garnett and Maria Paz Madrid
• Derek Muller

Events

• Faculty Colloquium
• Veterans Law Presentation
• Politics and the DOJ
• The Meaning of Natural
• Justice Amy Coney Barrett Moot Court Tournament Semi-Finals
• Provost Open Office Hours
• Rice-Hasson Distinguished Lecture Series

Around the Watercooler

• Staff Spot Awards

Mmu: 11/03/25-11/09/25, Student Bar Association

Monday Morning Update

This Week @ NDLS

Mass Times

Commons Daily Menu

Saint of the Week

General Announcements

Administrative Variability & The Price Of Title Ix Compliance On Minority-Serving Institutions, Jacob Wall

Cardozo Journal of Equal Rights and Social Justice (ERSJ) Blog

The Department of Education (“ED”) enforces civil rights in education through Title IX. Title IX prohibits sex-based discrimination in federally funded educational programs, and promotes inclusion in higher education.  Significantly, Title IX enforcement depends on the executive branch controlling the ED, as this power rests with both the Department of Justice and the ED’s Office for Civil Rights (OCR). Historically, judicial enforcement of statutes like Title IX relied on agency interpretation under Chevron U.S.A., Inc. v. Natural Resources Defense Council, Inc., which required judicial deference to executive agencies when statutes are ambiguous.  However, the Supreme Court’s 2024 decision in …

Subverting The System: Reducing Sex Offender Recidivism And Aiding Reentry Through The Use Of Specialty Courts, Jaymes Fairfax-Columbo, Emma Hamilton, Chelsea Jackson, Lia Knox-Hershey, David Dematteo

Texas A&M Law Review

Sex offender policy in the United States is predicated on accomplishing risk reduction and increasing public safety via punishment and incapacitation. Theoretically, accomplishing these goals should lessen the risk that sex offenders pose to society. However, an accumulated research base suggests that sex offender policies are ineffective in that they do not reduce recidivism rates, do not diminish children’s risk of sexual predation, and produce numerous detrimental collateral consequences. Further, current sex offender policies may actively undermine risk reduction by placing factors known to reduce risk level, such as stable housing, employment, and social support, out of the reach of …

The Role Of The Preamble: Evidence From The Constitutional Convention And The Ratification Debates, Stuart Ford

Texas A&M Law Review

This Article explores the role of the Preamble in constitutional interpretation by looking at how it was perceived at the founding. It does this in three ways. First, it explores how preambles were used in eighteenth-century America. At the time, preambles were almost universally understood to be key to interpreting the laws and constitutions they preceded. This shared understanding forms the backdrop against which the Preamble was received by the founding generation. Second, it looks at the records of the Constitutional Convention for evidence of what role the drafters expected the Preamble to serve. Unfortunately, the records of the Convention …

Major Rules In The Courts: An Empirical Study Of Challenges To Federal Agencies’ Major Rules, Libby Dimenstein, Donald L. R. Goodson, Tyler Szeto

Texas A&M Law Review

Since at least the 1990s, presidents have seen the administrative state as a key tool, if not the primary one, for achieving policy objectives. At the same time, the administrative state has faced growing scrutiny, particularly from members of the Supreme Court. Given these dynamics, do some administrations’ regulatory actions fare better in court than others? Are there any trends we can see over time? These are some of the questions we sought to answer in the first empirical study of how major rules, as defined under the Congressional Review Act (“CRA”), fare in federal court. We chose major rules …

A Reemployment Right For People In Pretrial Detention, Jordan Laris Cohen

Texas A&M Law Review

Job loss is a major collateral consequence of pretrial detention. It frequently results from even short periods of detention and can have cascading and long term effects on income, housing security, family stability, and likelihood of incarceration—all despite the fact that people in pretrial detention are entitled to a presumption of innocence and indeed may never be found guilty of an offense. Given existing racial disparities in arrests, bail determinations, and bail amounts, job loss from pretrial detention further drives racial inequalities in employment and income. While job loss from pretrial detention inflicts substantial social harms and undermines due process, …

The Case For “Constructive Gridlock” In Independent Agencies, Jeffrey Manns

Texas A&M Law Review

Critics of President Trump have alleged that he has reduced independent agencies to mere extensions of the executive branch during his second term. The reality is that Democratic and Republican presidents routinely leverage the opportunity to reshape independent agencies in openly partisan ways because presidents have majority control of the appointments for the leadership of virtu ally all agencies. I examine a large data set of independent agency votes from the Obama and first Trump terms to show that independent agency commissioners vote in predictably partisan ways when addressing substantive policy changes. The partisan design of independent agencies undercuts agency …

Causation’S Due Process Dimensions, Cassandra Burke Robertson, Charles W. “Rocky” Rhodes

Texas A&M Law Review

For decades, courts have grappled with the tension between compensating victims of mass harms and maintaining fairness to defendants when causation is difficult to prove. This Article argues that the Supreme Court’s due process jurisprudence provides a relevant framework for navigating this tension. We contend that the Court over the last three decades has established a consistent Fourteenth Amendment due process approach in punitive damages and personal jurisdiction cases, which is rooted in antecedents tracing to the nineteenth century and relies on a nexus of interests that balances individual rights, state interests, and federalism concerns. This framework, we argue, has …

That Old College Try: Judge-Made Monopolies In The Market For Affinity Goods, John A. Rothchild

Texas A&M Law Review

There is a large market for goods such as t-shirts, coffee mugs, posters, and baseball caps that are emblazoned with the names and symbols of culturally prominent institutions—universities, athletic teams, musical bands, automobile brands. We buy, wear, and display those goods to express our affinity with the referenced institution. The owners of the trade symbols that adorn these items, which this Article refers to as “affinity goods,” jealously guard what they claim is their sole right, under the trademark laws, to authorize the use of their symbols as decoration. They have brought numerous lawsuits aimed at establishing and enforcing this …

Thermtron: The Unsexy Case The Current Court Should Overturn (Statutory Stare Decisis Be Damned), Christine Tamer

Texas A&M Law Review

Since 1887, Congress has created an impenetrable dike wall to stop appellate review of remand orders in 28 U.S.C. § 1447(d), which provides: “An order remanding a case to the State court from which it was removed is not reviewable on appeal or otherwise . . . .” Then, in 1976, the Supreme Court held “that § 1447(d) does not mean what it says” and, thereby, punctured not a tiny hole, but a big one in Congress’s dike wall that had been impenetrable for nearly 90 years. While you won’t find Thermtron—an unsexy jurisdictional case—on any list of the …

Discerning Interstate Groundwater Law: An Evaluation Of Federal Common Law And Its Impacts On Groundwater Management, Brooke Collishaw

Texas A&M Law Review

The Supreme Court has demonstrated a superficial understanding of ground water over the last century in interstate water disputes. In cases that indirectly affect groundwater, it has ignored the complexities of the resource and its connection with surface water. All but one Supreme Court case that mentions groundwater centers around surface water, leading to the inadequate consideration of groundwater. This has led to the development of a unique federal common law for how federal courts are to resolve interstate water disputes that affect groundwater. While the Court has applied the law consistently, gaps exist. Given the growing reliance on cross-border …

It Takes A Village . . . But Let The Teenagers Vote, Joseph Fishkin

Notre Dame Law Review

In their article Give Parents the Vote, Kleinfeld and Sachs argue that we ought to give parents extra votes to cast by proxy on behalf of their minor children. In this response, I argue that their proposal misconceives the nature of voting itself. Unlike a child’s personal medical or financial decisions, which we entrust to those most responsible for a child’s care, voting is a collective act by which a political community makes collective choices. Each of us is obligated to cast our vote in the way we think best for the whole community. And each voter—whether a parent …

Trade Secrecy’S Information Paradox, Christopher Buccafusco, Jonathan S. Masur, Deepa Varadarajan

Notre Dame Law Review

Trade secret law is meant to encourage socially beneficial behaviors by permitting firms to protect their investments in the creation of valuable information. In theory, the ability to protect valuable information will make firms more likely to create that information in the first instance. But the law can also be used to shield socially harmful behaviors from public oversight. Firms can assert trade secret protection to prevent journalists, watchdogs, and criminal defendants from learning whether they are engaged in dangerous, wrongful, or biased activity. Ideally, trade secret law should sort socially beneficial uses from socially harmful ones, permitting only the …

Does The Law Ever Run Out?, Charles F. Capps

Notre Dame Law Review

Although laypeople commonly believe that a judge’s job is to decide every case as the law requires, a broad consensus exists among legal scholars that the law not infrequently “runs out,” leaving the judge to decide the case on extralegal grounds. This Article subjects that consensus to critical scrutiny. Tentatively, the Article concludes that none of the alleged sources of indeterminacy in the law—including permissive rules, balancing tests, vagueness, ambiguity, silence, contradictions, and uncertainty—actually causes the law to run out. More confidently, the Article maintains that the extent to which the law runs out, if it does at all, depends …

Foundations For Platform Liability, Kathryn E. Spier, Rory Van Loo

Notre Dame Law Review

From spreading misinformation to selling deadly products, bad actors use technology platforms to their advantage while causing devastating harms to privacy, health, and even democracy. Despite their central role in enabling these bad actors, the platforms almost entirely escape liability. This legal immunity is purportedly grounded in economics. From the beginning, courts and legislatures feared that liability would chill innovation, growth, and user access. They also speculated that platforms have sufficient market incentives to voluntarily police bad actors, making liability unnecessary.

Whereas many scholars have argued that platform immunity is blind to justice, this Article shows that it is also …

A Crisis Of Consensus: The Supreme Court’S Legitimacy And Recent Challenges Thereto, Abby Ulman

Notre Dame Law Review

Part I retells the history of Supreme Court decisions—from the time when Justices followed the British practice of issuing seriatim opinions to the time of Chief Justice John Marshall who instituted a policy of a single opinion for the Court. This norm of consensus lasted 140 years, during which the Court decided more than ninety percent of its cases unanimously. However, modern practice has been marked by division and dissensus, which have incited rhetoric of delegitimization. Part II examines two types of consensuses. Section A discusses internal consensus, or the extent to which the Justices agree with each other. Yet …

Habeas Corpus And Void Judgments, David Kinnaird

Notre Dame Law Review

In a string of recent opinions, Justice Gorsuch and Justice Thomas have posited that postconviction relief upon a writ of habeas corpus was historically unavailable except where the judgment of conviction was issued by a court lacking jurisdiction. In light of this history, Justices Gorsuch and Thomas have argued for a reconsideration of the modern scope of the writ, which generally allows for relitigation of alleged constitutional error in the course of criminal trial.

This Article argues that Justices Gorsuch and Thomas have the history half right. They are correct to assert that a valid judgment of conviction was a …

Give Parents The Vote, Joshua Kleinfeld, Stephen E. Sachs

Notre Dame Law Review

Many of America’s most significant policy problems, from failing schools to the aftershocks of COVID shutdowns to national debt to climate change, share a common factor: the weak political power of children. Children are twenty-three percent of all citizens; they have distinct interests; and they already count for electoral districting. But because they lack the maturity to vote for themselves, their interests don’t count proportionally at the polls. The result is policy that observably disserves children’s interests and violates a deep principle of democratic fairness: that citizens, through voting, can make political power respond to their interests.

Yet there’s a …

Give Young Adults The Vote, Nicholas O. Stephanopoulos

Notre Dame Law Review

Joshua Kleinfeld and Stephen Sachs make a significant contribution to the literature on children’s disenfranchisement by describing and defending parental proxy voting: empowering parents to vote on their children’s behalf. The authors’ democratic critique of the status quo is particularly persuasive. Children’s exclusion from the franchise indeed distorts public policies by omitting children’s preferences from the set that policymakers consider. However, Kleinfeld and Sachs’s proposal wouldn’t do enough to correct this distortion. This is because contemporary parents diverge politically from their children, holding, on average, substantially more conservative views. The proxy votes that parents cast for their children would thus …

What Is Voting For?, Joshua Kleinfeld, Stephen E. Sachs

Notre Dame Law Review

Responding to these views requires some reflection on the nature of voting and parenting both. At root, Stephanopoulos and Fishkin don’t think parents are the right people to represent their children politically, and we do. We unpack these theoretical differences as to both voting and parenting in Part I. In Part II, we address Stephanopoulos’s and Fishkin’s concrete policy proposals.

A last note: While our response below naturally focuses on points of disagreement, as that is the way of these things, that focus shouldn’t detract from the crucial fact that all four of us—from different political perspectives—think the status quo …

Appropriations By Any Other Name: The Illegality And Unconstitutionality Of Supplemental Environmental Projects, Andrew Olson

Notre Dame Law Review

This Note fleshes out the history of SEPs and the recent arguments against them. First, Part I traces the history of SEPs, from the early use of third-party payments, through the development of formal policies governing SEPs, to the Trump and Biden administrations’ dueling approaches to them. Then Part II explains what’s wrong with SEPs. Expanding on the arguments made in the various Justice Department memoranda, this Note argues that SEPs contravene both the Miscellaneous Receipts Act (MRA) and the Antideficiency Act (ADA). Next, the Note argues that while their illegality might be remedied by statute, SEPs also present deeper—and …

Emirati Administrative Law In Confronting The Impacts Of Climate Change, Prof. .Montassar Elouardi

Faculty Peer-Reviewed Papers | بحوث هيئة التدريس المحكمة

The study is grounded in a central thesis of significant methodological depth: administrative law in the United Arab Emirates is undergoing a profound structural transformation, one that entails a reconfiguration of several classical concepts that have historically shaped the discipline. This conceptual rearticulation results from the integration of the phenomenon of climate charge – understood in its technical, systemic, and global dimensions – into the very core of administrative law’s field of concern.

1- The study demonstrates that climate change no longer belongs solely to the realm of environmental law or public international law; it has become a fully-fledged administrative …

From Prestige To Performance: Evaluating Law School Outcomes Using Value-Added Modeling, Jason Scott, Andrea Pals, Dominique Monserrat

AccessLex Institute Research

Bar passage and employment rates are widely used to evaluate law school performance, yet these raw outcomes often reflect student selection rather than institutional performance. This study applies a value-added modeling (VAM) framework to assess the contributions of law schools to student success, controlling for prior achievement and contextual factors. Using a 10-year panel dataset of 189 ABA-accredited law schools, we estimate fixed-effects models to isolate the impact of the law school learning environment on first-time bar passage and law-related employment. Our findings reveal that schools traditionally viewed as underperforming often exceed expectations when student background is accounted for, challenging …

New Judicial Federalism And The Establishment Clause: Classroom Ten Commandments As A Case Study In State Constitutional Protection, Caroline Mala Corbin

Articles

Louisiana recently enacted a law requiring a Ten Commandments display in every public school classroom from kindergarten to college. Forty-five years ago, the U.S. Supreme Court ruled that a nearly identical attempt to introduce Christianity into the public schools violated the Establishment Clause—the clause in the U.S. Constitution’s First Amendment that requires some degree of separation between church and state.

Unfortunately, the U.S. Supreme Court has since reduced the Establishment Clause to a shadow of its former self. It replaced doctrinal tests that protected religious minorities with a history and tradition test that is easily manipulated and that presumes the …

Modernizing Family Courts: How Technology-Driven Triage Improves Access To Justice For Self- Represented Litigants And Enhances Efficiency For Lawyers, Ayyoub Ajmi, Alicia Davis

Faculty Works

Family courts are overwhelmed by rising caseloads, increasing parental conflict, and limited judicial resources. With 80–90% of litigants self-represented (SRLs), case delays and inefficiencies affect all parties, including those with private counsel. High-conflict cases make up 10–30% of dockets, consuming judicial time and worsening outcomes for families, especially children. This article explores the Family Court Services Portal, a technology-driven triage tool designed to streamline family case processing, improve access to justice, and help courts allocate re- sources effectively. The portal integrates pre-screening triage automation, guiding parties through structured issue identification to support proportional judicial intervention and informed case management. Developed …

Necessity In Free Exercise, Brady Earley

University of Chicago Law Review

The Free Exercise Clause is a broadly worded constitutional prohibition against government intrusion on religious exercise. To construct limits, courts have consistently required government officials to demonstrate the necessity of state action burdening religion. Yet government officials regularly fail to produce evidence of necessity, leaving judges to intuit or assume whether necessity exists. This Comment offers a better way. Using a method known as difference-in-differences (DiD), lawmakers can draw upon the experience of existing state laws to enact laws justified with evidence. This Comment demonstrates the value of DiD with a current free exercise controversy involving the Old Order Amish …

The Victims’ Rights Mismatch, Lee Kovarsky

Michigan Law Review

A puzzling mismatch lurks inside victims’ rights law. Victims’ rights are most easily justified when held by living victims, but the cultural movement has triumphed largely as a response to crime-caused death. This Article identifies the mismatch between victims’ rights and their justifications in dead-victim cases, analyzes the normative questions involved, and recommends an institutional response. The mismatch persists because American jurisdictions assign a single bundle of rights to all people denominated as “victims.” In dead-victim cases, however, the primary bearers of interpersonal harm are gone. Instead, their rights are assumed by aggrieved family members and legal estates. In those …

A Comparison Of Inadequate Doctrines: The Canadian “Honour Of The Crown” And The U.S. Federal Trust Responsibility, Jennifer Pahre, Cara Shanahan, Emma Troy, Brooke Conklin

Texas A&M Journal of Property Law

This article critically examines and compares the Canadian doctrine of the "honour of the Crown" and the United States' federal trust responsibility as legal frameworks intended to protect the rights and interests of Indigenous peoples. Through historical and doctrinal analysis, the authors argue that both doctrines, while rooted in fiduciary ideals, have been reinterpreted by courts and policymakers in ways that prioritize governmental interests over those of Indigenous communities. The U.S. trust responsibility, once grounded in treaty obligations and sovereign-to-sovereign relations, has devolved into a vague, largely unenforceable moral and legal obligation, allowing for unilateral federal and state action that …

Rico V. United States, Meagan R. Hurley

Articles

Isabel Rico was serving a term of supervised release when she absconded from federal supervision. Years later, the government sought to revoke her release, arguing that her fugitive status “tolled” her supervised-release term. The Ninth Circuit agreed. Other circuits, however, have rejected the fugitive-tolling doctrine in the supervised-release context. The Supreme Court will now decide whether federal courts may judicially adopt fugitive tolling, or whether Congress’s silence in the supervised-release statute forecloses it.