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Articles 61 - 79 of 79
Full-Text Articles in Law
The Big Data Jury, Andrew Guthrie Ferguson
The Big Data Jury, Andrew Guthrie Ferguson
Notre Dame Law Review
Big data technologies now exist to create algorithmically perfect jury pools matching the demographic realities of a community. Big data technologies also exist to provide litigants a wealth of personal information about potential jurors. The question remains whether these technological innovations benefit the jury system. This Article addresses the disruptive impact of big data on jury selection and the dilemma it presents to courts, lawyers, and citizens.
The Runaway Wagon: How Past School Discrimination, Finance, And Adequacy Case Law Warrants A Political Question Approach To Education Reform Litigation, Anthony Bilan
Notre Dame Law Review
Courtroom battles surrounding school finance and adequacy claims are very much alive today, nearly forty years after their progenitor, Serrano v. Priest. In spawning a potential new chapter in this history, a trial court in California struck down its state’s battalion of teacher tenure and employment laws under a legal analysis based in the education quality that those laws provided. This “landmark” case, Vergara, is generating conversation that its results could be duplicated throughout the nation. In a format familiar to school finance litigation, the Vergara court found that the state’s tenure statutes so detrimentally affected teaching that …
A Framework For Bailout Regulation, Anthony J. Casey, Eric A. Posner
A Framework For Bailout Regulation, Anthony J. Casey, Eric A. Posner
Notre Dame Law Review
During the height of the financial crisis in 2008 and 2009, the government bailed out numerous corporations, including banks, investment banks, and automobile manufacturers. While the bailouts helped end the financial crisis, they were intensely controversial at the time, and were marred by the ad hoc, politicized quality of the government intervention. We examine the bailouts from the financial crisis as well as earlier bailouts to determine what policy considerations best justify them, and how they are best designed. The major considerations in bailing out and structuring the bailout of a firm are the macroeconomic impact of failure; the moral …
The Promises And Perils Of Evidence-Based Corrections, Cecelia Klingele
The Promises And Perils Of Evidence-Based Corrections, Cecelia Klingele
Notre Dame Law Review
Public beliefs about the best way to respond to crime change over time, and have been doing so at a rapid pace in recent years. After more than forty years of ever more severe penal policies, the punitive sentiment that fueled the growth of mass incarceration in the United States appears to be softening. Across the country, prison growth has slowed and, in some places, has even reversed. Many new laws and policies have enabled this change. The most prominent of these implement or reflect what have been called “evidence-based practices” designed to reduce prison populations and their associated fiscal …
The Curious Case Of Seminole Rock: Revisiting Judicial Deference To Agency Interpretations Of Their Ambiguous Regulations, Peter M. Torstensen Jr.
The Curious Case Of Seminole Rock: Revisiting Judicial Deference To Agency Interpretations Of Their Ambiguous Regulations, Peter M. Torstensen Jr.
Notre Dame Law Review
Seminole Rock deference warrants reconsideration as it is based on questionable constitutional and pragmatic foundations. This Note argues that courts should provide a meaningful check on agency interpretations by engaging in de novo review of agency resolutions of regulatory ambiguities. Part I explores the development of the Seminole Rock doctrine, from its questionable doctrinal foundations and rapid expansion to the developing concerns regarding its continued validity. In addition, Part I explains the variety of forms that agency interpretations can take, including legal briefs, amicus briefs, and internal memoranda, and discusses their impact in expanding the scope of Seminole Rock deference. …
Police Culture In The Twenty-First Century: A Critique Of The President's Task Force's Final Report, Julian A. Cook Iii
Police Culture In The Twenty-First Century: A Critique Of The President's Task Force's Final Report, Julian A. Cook Iii
Notre Dame Law Review Reflection
In response to a series of events involving police-citizen encounters, including those in Ferguson, Missouri, and Staten Island, New York, that have strained relations between law enforcement and the communities (primarily minority) that they serve, President Barack Obama established a task force charged with developing a set of recommendations designed to improve police practices and enhance public trust. Headed by Charles Ramsey, Commissioner of the Philadelphia Police Department, and Laurie Robinson, former Assistant Attorney General for the U.S. Department of Justice Office of Justice Programs, and currently a Professor of Criminology, Law, and Society at George Mason University, the eleven-member …
Is Stare Decisis Inconsistent With The Original Meaning Of The Constitution?: Exploring The Theoretical And Empirical Possibilities, James Cleith Phillips
Is Stare Decisis Inconsistent With The Original Meaning Of The Constitution?: Exploring The Theoretical And Empirical Possibilities, James Cleith Phillips
Notre Dame Law Review Reflection
For some time, a scholarly debate has raged over whether a commitment to the original meaning of the Constitution allows for the doctrine of stare decisis, whereby courts defer to precedent simply because it is precedent. This Essay explains the range of theoretical possibilities for this seemingly incompatible duo, as put forth by originalism’s leading scholars, and situates these various theories on a continuum. The Essay ends with a preview of the difficulties and possibilities that follow from the various empirical answers regarding the relationship between stare decisis and the Constitution at the Founding.
The New Elections Clause, Michael T. Morley
The New Elections Clause, Michael T. Morley
Notre Dame Law Review Reflection
The Elections Clause and Presidential Electors Clause are the sources of a wide range of constitutional doctrines concerning federal elections. While Arizona State Legislature v. Arizona Independent Redistricting Commission, on its face, addresses only the meaning of “Legislature” in the Elections Clause and the validity of redistricting commissions, the Court’s broad reasoning sweeps much further. This Essay offers a first analysis of the “new” Elections Clause in the wake of this ruling.
Directv, Inc. V. Imburgia, Angelica Sanchez Vega
Directv, Inc. V. Imburgia, Angelica Sanchez Vega
Notre Dame Law Review Reflection
It is no secret that alternative dispute resolution (ADR) has become an important part of the contemporary American legal system. Compared to full-fledged judicial proceedings, ADR methods, including arbitration, offer a more cost-effective alternative. Both private and public entities have embraced the chance to address legal disputes while using resources more effectively. In 1998, for example, President Clinton issued a memorandum to the heads of executive departments and agencies encouraging the use of ADR “[a]s part of an effort to make the Federal Government operate in a more efficient and effective manner.” In spite of all of the benefits of …
Dna And Distrust, Kerry Abrams, Brandon L. Garrett
Dna And Distrust, Kerry Abrams, Brandon L. Garrett
Notre Dame Law Review
Over the past three decades, government regulation and funding of DNA testing has reshaped the use of genetic evidence across various fields, including criminal law, family law, and employment law. Courts have struggled with questions of when and whether to treat genetic evidence as implicating individual rights, policy trade-offs, or federalism problems. We identify two modes of genetic testing: identification testing, used to establish a person’s identity, and predictive testing, which seeks to predict outcomes for a person. Judges and lawmakers have often drawn a bright line at predictive testing, while allowing uninhibited identification testing. The U.S. Supreme Court in …
Nuclear Stalemate: Indefinite Above-Ground Storage Is A Temporary, Albeit Safe Band-Aid For A Serious Wound, Steven D. Melzer
Nuclear Stalemate: Indefinite Above-Ground Storage Is A Temporary, Albeit Safe Band-Aid For A Serious Wound, Steven D. Melzer
Notre Dame Law Review
This Note focuses on the validity and wisdom of the Nuclear Regulatory Commission’s approach: the September 2014 Rule and accompanying Generic Environmental Impact Statement (GEIS), as well as their combined potential to significantly alter the trajectory of spent fuel storage and disposal in the United States. Part I will explain the relevant history helpful to understand the political battles and legal issues surrounding spent fuel disposal and the Yucca Mountain project. Parts II and III will analyze the implications of the new Continued Storage Rule and why it likely satisfies all applicable statutory requirements and judicial orders. Part IV will …
Standing Doctrine's State Action Problem, Seth Davis
Standing Doctrine's State Action Problem, Seth Davis
Notre Dame Law Review
Something surprising happened in the 2013 marriage equality cases that did not involve striking down the Defense of Marriage Act. The Supreme Court discovered standing doctrine’s state action problem. In standing doctrine, as elsewhere, the law distinguishes private from governmental action. There are, simply put, different standing rules for state actors than for private litigants. How should the law sort state actors from private litigants for the purposes of standing? In Hollingsworth v. Perry, the Court held that Article III limits government standing to common law agents who owe fiduciary duties to the state. The Perry Court’s apparent concern was …
Why The Right To Elective Abortion Fails Casey'S Own Interest-Balancing Methodology—And Why It Matters, Stephen G. Gilles
Why The Right To Elective Abortion Fails Casey'S Own Interest-Balancing Methodology—And Why It Matters, Stephen G. Gilles
Notre Dame Law Review
Casey adopted a new, interest-balancing framework for the right to elective abortion while preserving the core of that right. But by declining to address whether the right to elective abortion can be justified in interest-balancing terms, Casey opened the door to unduly stringent applications of the undue-burden standard and, no less importantly, to future extensions of the right. By ruling that the state’s interest in protecting pre-viable fetal life outweighs the woman’s interest in an elective abortion, while preserving that right on stare decisis grounds, the Court could ensure that the balance it struck in Casey—and that “was central …
Privacy And Markets: A Love Story, Ryan Calo
Privacy And Markets: A Love Story, Ryan Calo
Notre Dame Law Review
After defining terms, Part I lays out the law and economics case against privacy, including its basis in economic thought more generally. Part II canvasses the literature responding to economic skepticism in the privacy law literature. Some scholars mount an insider critique, accepting the basic tenets of economics but suggesting that privacy actually increases efficiency in some contexts, or else noting that markets themselves will yield privacy under the right conditions. Others critique economic thinking from the outside. Markets “unravel” privacy by penalizing it, degrade privacy by treating it as just another commodity, or otherwise interfere with the values or …
Florida's Stand Your Ground Regime: Legislative Direction, Prosecutorial Discretion, Public Pressures, And The Legitimization Of The Criminal Justice System, Mary Elizabeth Castillo
Florida's Stand Your Ground Regime: Legislative Direction, Prosecutorial Discretion, Public Pressures, And The Legitimization Of The Criminal Justice System, Mary Elizabeth Castillo
Journal of Legislation
This note seeks to examine the tripartite relationship between legislative delegation, prosecutorial discretion, and public pressures in the context of Florida's "Stand Your Ground" regime. In the context of high profile criminal cases, a prosecutor faces significant public and political pressures that may influence her exercise of discretion in that case. Ultimately, Castillo argues that when a prosecutor succumbs to these pressures, it undermines her expertise, experience and exercise of discretion, and undercuts the legitimacy of the criminal justice system as a whole.
U.S. Biological Quarantine: A Look At The Legal Framework, Katherine T. Rooney
U.S. Biological Quarantine: A Look At The Legal Framework, Katherine T. Rooney
Journal of Legislation
Biological terrorism is a growing problem. Search and seizure protections have an on-going balancing relationship with national security that is balanced by a least restrictive means test. The Kaci Hickox case exposed the difficulty of maintaining the civil rights protections of search and seizure while combating a potentially catastrophic danger.
When Lenders Can Legally Provide Loans With Effective Annual Interest Rates Above 1,000 Percent, Is It Time For Congress To Consider A Federal Interest Cap On Consumer Loans?, Victor D. Lopez
Journal of Legislation
The question of whether interest rates should be regulated for the good of society has been debated by secular and religious authorities for millennia. Restrictions on the highest rate of interest allowed by law (if any) are generally set by the states. In the U.S., whether citizens are protected against unreasonably high interest rates is generally a matter for state legislatures to decide. In this article, the current laws of the 50 states and the District of Columbia are examined with regards to the issue of usury, as well as the challenges posed by federal law for states who wish …
King V. Burwell: The Supreme Court's Missed Opportunity To Cure What Ails Chevron, Vanessa L. Johnson, Marisa Finley, J. James Rohack
King V. Burwell: The Supreme Court's Missed Opportunity To Cure What Ails Chevron, Vanessa L. Johnson, Marisa Finley, J. James Rohack
Journal of Legislation
The article outlines the construct of the ACA’s premium assistance tax credits, explores the legal controversies surrounding these subsidies, uses the tax subsidies cases to demonstrate the flaws in the Chevron framework, and argues that the Supreme Court should have framed its King v. Burwell analysis in a way that would have cured, rather than ignored, the ails of Chevron.
Has The S-Corp Run Its Course? The Past Successes And Future Possibilities Of The S Corporation, David Branham
Has The S-Corp Run Its Course? The Past Successes And Future Possibilities Of The S Corporation, David Branham
Journal of Legislation
The United States' economy has benefited greatly by providing an atmosphere where small businesses can grow in a free marketplace. The S-Corporation and its tax advantages have played a pivotal role in our strong economy. In order to ensure continued success as a part of the economy, the S-Corporation element prohibiting foreign shareholders needs to be adjusted.