Law Commons^™

Public Employees As A Reflection Of A Religiously Diverse Culture, Steven T. Collis

Notre Dame Law Review Reflection

For decades, scholars and jurists have debated over whether government violates

the Establishment Clause when it endorses religion or if coercion is required. In

Kennedy v. Bremerton School District, the Supreme Court put this argument to

rest, at least as to public employees. It grounded its decision in some form of

originalism. While that will be sufficient to satisfy some readers, others will want to be

assured of the wisdom of the rule originalism demands. This Essay argues that a

coercion test for the private religious exercise of public employees is appropriate for a

pluralistic society.

It offers four …

Thoughts On The Architecture Of Freedom Of Religion And Freedom Of Speech, Perry Dane

Notre Dame Law Review Reflection

This symposium was convened to explore the rights of businesses

and employees to invoke freedom of religion or freedom of expression

to resist certain forms of state regulation. The most immediate

occasions for that discussion, at least for my purposes, are cases such

as 303 Creative LLC v. Elenis, in which the Supreme Court upheld the

right of a website designer to refuse to design a wedding website for a

same-sex couple. These sorts of cases, which pit the religious or

expressive rights of conscientious believers against the equality rights

of others, have proliferated in recent years.

I have …

First Amendment Imbalance: Kennedy V. Bremerton School District, Steven K. Green

Notre Dame Law Review Reflection

This Essay seeks to unpack the competing legal claims presented by a public-school employee engaging in religious expression in conjunction with their work duties and in the presence of students. The competing First Amendment issues are several: nonestablishment, free exercise, free speech (including the government-employee speech doctrine), and parental expressive rights. These various issues came to a head in 2022 in Kennedy v. Bremerton School District where a Court majority affirmed the right of a high school football coach to engage in demonstrative prayers on the football field at the conclusion of a game. In so holding, the majority prioritized …

Ordinary Conscience And Pretend Offenses: Protecting Those Left Out Of Title Vii After Groff, Robin Fretwell Wilson, Michael J. Petersen

Notre Dame Law Review Reflection

Part I reviews America’s foundational commitment to fairness and transparency by government, as well as the deep respect the Founders believed should be accorded to conscience specifically.

Part II applauds the unanimous decision in Groff to walk back the Supreme Court’s grievous error in Trans World Airlines, Inc. v. Hardison. We canvas illustrative cases pre-Groff in which employees, notwithstanding Hardison’s “de minimis” burden standard, proceeded to trial, and instances in which employees did not. We also illustrate how, post-Groff, employees are, rightfully, having an easier time getting to trial.

Even as Groff makes actual Title …

Cleaning The Mess Of 303 Creative V. Elenis, Netta Barak-Corren

Notre Dame Law Review Reflection

No piece of academic writing can clean, by itself, the mess left by 303 Creative v. Elenis. Only the Court can. This symposium piece can only offer analytical clarity on 303 Creative, which can help to understand and organize the mess. I will proceed to do so in three steps. First, I point out the glaring omissions of the Court’s opinion and criticize the dangerous consequences of the Court’s inexplicable approach. Second, I discuss the inconsistency of the dissent and the truth it reveals about the unviability of its sweeping position. Finally, I argue that the only way …

Resolving Land Use Conflicts Without Zoning, Noah Austin

Notre Dame Law Review Reflection

This Note presumes the rise of mixed-use development, upzoning, and other deregulatory zoning schemes. It sets aside the question of whether the costs of exclusionary zoning outweigh its benefits to society. And it characterizes the return-of-nuisance problem as something to be mitigated while pursuing land use deregulation, not as a cause for slowing that deregulation.

To this end, this Note offers three possible solutions towards mitigating conflicts between competing land uses in deregulated regimes. This Note contends that where today’s deregulated developments do generate conflicts between conflicting use types, society would reap net benefit by weakening judicial protection of nuisance …

Toxic Discretion: Environmental Inequality And The Discretionary Function Exception, Sarah E. Barritt

Notre Dame Law Review Reflection

Environmental racism is far reaching and insidious, and each of these devastating instances and the institutional factors that led to them could and should be the subject of entire books in their own right. The EPA and other agencies of the United States government are complicit in multiple ways, not least of all through their abject failures to properly regulate private industry pollution in BIPOC communities. However, this Note has cabined its analysis to the government’s failure to warn these communities of environmental contamination, and what happens when it hides behind the discretionary function exception in ensuing litigation. To provide …

Guns, Analogies, And Constitutional Interpretation Across Centuries, Frederick Schauer, Barbara A. Spellman

Notre Dame Law Review

In New York State Rifle & Pistol Ass’n v. Bruen, the Supreme Court acknowledged the difficulties in applying its constitutional originalism to the question of firearms regulation. After all, the fully automatic assault rifles whose sale, possession, and use lie at the center of many contemporary debates about gun control and the Second Amendment simply did not exist in 1791, when the Second Amendment was ratified. Nor did they exist in 1868, when the Fourteenth Amendment, the vehicle for applying the Second Amendment to the states, was added to the Constitution. The firearms that existed in 1791 were largely …

The General-Law Right To Bear Arms, William Baude, Robert Leider

Notre Dame Law Review

In this Article, we argue that Bruen's intended methodological shift has been widely misunderstood by the bench and bar. This has led to confusion and misapplication in the lower courts, as well as much scholarly criticism of the test that is, we think, misdirected. As we will explain, Bruen calls for a form of legal originalism, applying a classical view of fundamental rights as a form of unwritten customary law. This is consistent with the text and history of the Constitution and leads to results that are less mechanical and more sensible than many lower courts have thought. Understanding …

Bruen’S Enforcement Puzzle: Unearthing And Adjudicating The Historical Enforcement Record In Second Amendment Cases, Andrew Willinger

Notre Dame Law Review

The Supreme Court’s 2022 decision in New York State Rifle & Pistol Ass’n v. Bruen brings historical complexity to the fore by instituting a history-focused test for the Second Amendment that demands analogues from the Founding or Reconstruction eras to support modern gun regulations. The majority opinion in Bruen considers, in multiple places, how certain historical gun regulations may have been enforced. In each instance, the Court suggests that evidence of racially disparate enforcement of a historical law is relevant to whether that law is part of the American historical tradition and an appropriate analogue. Historical enforcement data appear to …

Technology, Tradition, And “The Terror Of The People”, Darrell A.H. Miller, Alexandra Filindra, Noah Kaplan

Notre Dame Law Review

In New York State Rifle & Pistol Ass’n v. Bruen, the Supreme Court mandated a text, history, tradition, and analogy–only approach to Second Amendment cases.

No longer can policymakers rely on empirical data alone to carry their litigation burden. Now such data must conform to a still-emerging “historical tradition of firearm regulation” to meet constitutional muster. Some despair that reams of data, careful experiments, and rigorous statistical analyses no longer have any relevance to the gun debate.

But those that claim that Bruen signals the end of empirically grounded policy solutions badly misread the opinion. Empirical studies can still …

Patent Law’S Role In Protecting Public Health, Sean B. Seymore

Notre Dame Law Review

Innumerable inventions implicate public health—including drugs, vaccines, dietary supplements, and sewage treatment plants. Over the past century, the Patent Office and the courts have modulated the ability to obtain or enforce patents for these inventions—whether in response to a public health crisis or to protect the credulous public from unscrupulous inventors. While normative and policy-based arguments can justify these interventions, they’ve disrupted the delicate balance of two competing policy objectives in patent law—enhancing public welfare and promoting innovation. This Article offers a new approach for courts to protect public health in patent cases—by making public health an affirmative defense to …

The Incoherence Of Evidence Law, G. Alexander Nunn

Notre Dame Law Review

What is the purpose of evidence law? The answer might seem intuitive. Evidence law exists, of course, to foster verdict accuracy, legitimacy, and efficiency. But these kindred aims often come into conflict. Policy tradeoffs are inescapable in evidence law, meaning that an evidentiary regime must clarify how its normative objectives cohere. Do accuracy, legitimacy, and efficiency work together on equal footing, such that the goal of a code is to maximize each objective to the extent possible? Or does one of evidence law’s aims take precedence over the rest? And if one goal takes priority, what is the role of …

Elastic Batch And Bellwether Proceedings In Mass Arbitration, Bennett Rogers

Notre Dame Law Review

This Note will first succinctly review the history of aggregative litigation, including the decline of traditional Rule 23 class actions, the proliferation of arbitration agreements, and both the legislative and judicial support for this change. Next, it will examine plaintiffs’ response to the rise of arbitration with the creation of mass arbitration networks and explain why some companies started to move away from arbitration. Then it will consider the defense bar’s response to mass arbitration with batch and bellwether proceedings, examine the current bellwether arbitration cases moving through the courts, and introduce the latest arbitral institution making headways with its …

Strengthening State Constitutions, Jared C. Huber

Notre Dame Law Review

This Note argues that state constitutions should have more difficult amendment procedures than most states currently do. Part I highlights the ease of amending most state constitutions by evaluating state constitutional amendment procedures. Next, Part II argues that because constitutions are fundamental, organizing laws, their amendment procedures should reflect such status. Finally, Part III of this Note examines state constitutional amendments that resulted from national political turmoil and argues amendment procedures should be stringent enough to temper such reactionism. If a constitution is to be a constitution, it must be resilient enough to function as one. State constitutions largely fail …

Historical Fact, Ryan C. Williams

Notre Dame Law Review

The growing emphasis on history as a criterion of constitutional decision-making in Supreme Court jurisprudence has raised the importance of a distinctive type of judicial fact-finding—namely, the investigation and resolution of contested questions of historical fact. Although history has always played an important role in constitutional adjudication, its primary role has traditionally been as an input to constitutional interpretation. But in cases like New York State Rifle & Pistol Ass’n v. Bruen, the Court has increasingly demanded that factual determinations regarding the content, meaning, purposes, and effects of decisions taken in the distant past should also guide the lower …

Diverse Originalism, History & Tradition, Christina Mulligan

Notre Dame Law Review

The Supreme Court’s New York State Rifle & Pistol Ass’n v. Bruen decision appears to be an originalist opinion, ostensibly looking for the meaning of the Constitution’s text by looking to the public’s understanding of the language used. But Bruen's test actually fails to follow a public meaning originalist methodology. The Court focuses present-day constitutional interpreters on evidence of constitutional meaning that only reflects a portion of the public—the politically empowered men who were in a position to pass legislation. Two unfortunate outcomes follow. First, by limiting potential evidence of public meaning so severely, the Court raises the risk …

Religious Courts And Tribunals In Africa: An Overview, Mark Hill Kc

Notre Dame Journal of International & Comparative Law

No abstract provided.

Volume 14, Issue 3 - Full Issue, Notre Dame Journal Of Int'l & Comparative Law Volume 14

Notre Dame Journal of International & Comparative Law

No abstract provided.

Letter From The Editor, Barrett Cole

Notre Dame Journal of International & Comparative Law

No abstract provided.

Deep Seabed Mining: What Is To Be Done About The Regulatory Lacuna?, Katherine Reece Thomas

Notre Dame Journal of International & Comparative Law

No abstract provided.

Getting In A Bind—Comparing Executive Compensation Regulations In The U.S. And The U.K., Bobby V. Reddy

Notre Dame Journal of International & Comparative Law

No abstract provided.

Drone Attacks And The Failure Of Securitisation In Pakistan, Satvinder S. Juss, Sahib S. Juss

Notre Dame Journal of International & Comparative Law

No abstract provided.

Volume 14, Issue 2 - Full Issue, Notre Dame Journal Of Int'l & Comparative Law Volume 14

Notre Dame Journal of International & Comparative Law

No abstract provided.

More Than Troubling: The Alarming Absence Of ‘Troubled Teen Industry’ Regulation And Proposals For Reform, Morgan Rubino

Journal of Legislation

This Note will advocate for immediate and wide-reaching legislative action on juvenile residential treatment. Part I will provide a brief history of the origins of the Troubled Teen Industry ("TTI") and the most common types of facilities operating today. Part II will analyze some of the limited state legislation on the TTI, along with the Stop Institutional Child Abuse Act pending before Congress. Finally, Part III will lay out the most pressing injustices and abuses that arise out of the TTI and argue that an integrated framework of local and federal legislation, including the adoption of state bills of rights …

There Is No More New Frontier: Analyzing Wildfire Management Efforts In The United States, Morgan D. Gafford

Journal of Legislation

Congress needs to address the major wildfire problem by enacting more legislation that works alongside state governments and their own fire management goals. It is time for Congress to take wildfire suppression legislation more seriously and move it beyond the introductory phase. It is time for Congress and the other branches of the federal government to work together. It is time for everyone—but especially Congress—to fully comprehend the detrimental effects the most severe fires have on the environment, society, and the economy.

Interpretive Divergence In The New York Court Of Appeals, Ethan J. Leib

Journal of Legislation

This Article focuses attention on the New York Court of Appeals, which is decidedly formalist about contract interpretation but decidedly contextualist about statutory interpretation. It explores some recent exemplary cases to show where the New York Court of Appeals tends to land in what turns out to be, for this court at least, two different battlefields in the law of interpretation. Finding that there is “interpretive divergence” between statutory and contract cases, the Article then reflects on the practice of divergence more generally, revisiting assumptions about why anyone might have thought harmonization was sensible in the first place.

Volume 50, Issue Ii - Full Combined Issue

Journal of Legislation

No abstract provided.

Cover Page, Masthead, And Table Of Contents

Journal of Legislation

No abstract provided.

The History Of Bans On Types Of Arms Before 1900, David B. Kopel, Joseph G.S. Greenlee

Journal of Legislation

This Article describes the history of bans on particular types of arms in America, through 1899. It also describes arms bans in England until the time of American independence. Arms encompassed in this article include firearms, knives, swords, blunt weapons, and many others. While arms advanced considerably from medieval England through the nineteenth-century United States, bans on particular types of arms were rare.