Law Commons^™

Ndls Communicator: Week Of 12.19.22, Notre Dame Law School

NDLS Communicator

The Latest News

• Roger Alford was quoted by Reuters in a report on the Federal Trade Commission’s attempt to block the Microsoft- Activision merger.
• Nicole Garnett was quoted in the article, "Oklahoma takes 'momentous' step to allow taxpayer-funded religious schools."
• Rick Garnett was quoted by Deseret News in an article about the Supreme Court case 303 Creative v. Elenis.
• Sherif Girgis was in the video, "The Constitution: Our Bill of Rights" produced by PragerU.
• Diane Desierto will moderate the Innovation in Investor- State Arbitration Panel at the Fifth Annual Schiefelbein Global Dispute Resolution Conference coming up in January.
• Catholic Schools …

Fireside Chat With Dean Cole And Notre Dame Law Student Rachel Schneider, Marcus Cole, Rachel Schneider

2019–Present: G. Marcus Cole

Dec 13, 2022

Dean G. Marcus Cole and Rachel Schneider '23 share their journeys to Notre Dame Law School, their connection to the Order of St. Thomas More, and the impact your gifts have on Notre Dame Law students.

Ndls Communicator: Week Of 12.12.22, Notre Dame Law School

NDLS Communicator

Chancellor Kathaleen McCormick ’04 J.D. of the Delaware Court of Chancery delivers inaugural Patricia O’Hara Distinguished Lecture in Law & Business

The Latest News

• Last year, the ND Fitzgerald Institute for Real Estate (FIRE) started the Church Properties Initiative to help the Church to think through real estate concerns. Dan Kelly is the faculty director for FIRE.
• Rick Garnett explained public accommodation laws for a Today Show report on a Virginia restaurant that refused to serve a conservative Christian group.
• Nicole Garnett writes about how religious charter schools will add valuable pluralism to the U.S. educational landscape in an essay …

Ndls Communicator: Week Of 12.05.22, Notre Dame Law School

NDLS Communicator

The Latest News

• Professor Emily Bremer wins Emerging Scholar Award from AALS
• Dublin and Hamburg Honor Scholars Programs offer unique opportunities for students to learn international law
• Notre Dame recognized as top LL.M. Human Rights Law Program
• Religious Liberty Initiative mentioned in article about Ohio EdChoice debate
• Mary Ellen O'Connell was quoted in The Intercept article, "Will Biden Sell Advanced Drones to Ukraine?"
• Jimmy Gurulé was quoted by the Washington Post in "Sedition trial win bolsters Justice Dept. in Jan. 6 probe."
• Avishalom Tor has published a new article, "The Law and Economics of Behavioral Regulation," 18 Review of Law …

Mmu: 12/05/22–12/11/22, Student Bar Association

Monday Morning Update

Note from the Editor

This Week @ NDLS

Screening of "The Hong Konger: Jimmy Lai's Extraordinary Struggle for Freedom"

CLS Prayer Meeting

Dog Day

FREE COFFEE from Student Services

Mass Times

Commons Daily Menu

General Announcements

Kresge Law Library: Study Rooms

1L of the Week: Harry Weeks

2Ls Taking Ls: Tori Hust

Ask a 3L: Erin Gormley

Jackie's [Kamel] Corner

On The Rightful Deprivation Of Rights, Frederick Schauer

Notre Dame Law Review

When people are deprived of their property rights so that the state can build a highway, a school, or a hospital, they are typically compensated through what is commonly referred to as “takings” doctrine. But when people are deprived of their free speech rights because of a clear and present danger, or deprived of their equal protection, due process, or free exercise rights because of a “compelling” governmental interest, they typically get nothing. Why this is so, and whether it should be so, is the puzzle that motivates this Article. Drawing on the philosophical literature on conflicts of rights and …

Debs And The Federal Equity Jurisdiction, Aditya Bamzai, Samuel L. Bray

Notre Dame Law Review

The United States can sue for equitable relief without statutory authorization. The leading case on this question is In re Debs, and how to understand that case is of both historical and contemporary importance. Debs was a monumental opinion that prompted responses in the political platforms of major parties, presidential addresses, and enormous academic commentary. In the early twentieth century, Congress enacted several pieces of labor legislation that reduced Debs’s importance in the specific context of strikes. But in other contexts, the question whether the United States can bring suit in equity remains disputed to this day. The …

Solidarity Federalism, Erin F. Delaney, Ruth Mason

Notre Dame Law Review

Studies of federalism, especially in the United States, have mostly centered on state autonomy and the vertical relationship between the states and the federal government. This Article approaches federalism from a different perspective, one that focuses on state solidarity. We explain how solidarity structures found in constitutional federations—including the United States—generate solidarity obligations, such as duties not to harm other states or their citizens. These duties give rise to principles, such as nondiscrimination, that are vital to federalism. Focusing on interstate relations and relations between states and citizens of other states, we argue that affirming both solidarity and autonomy as …

Social Trust In Criminal Justice: A Metric, Joshua Kleinfeld, Hadar Dancig-Rosenberg

Notre Dame Law Review

What is the metric by which to measure a well-functioning criminal justice system? If a modern state is going to measure performance by counting something—and a modern state will always count something—what, in the criminal justice context, should it count? Remarkably, there is at present no widely accepted metric of success or failure in criminal justice. Those there are—like arrest rates, conviction rates, and crime rates—are deeply flawed. And the search for a better metric is complicated by the cacophony of different goals that theorists, policymakers, and the public bring to the criminal justice system, including crime control, racial justice, …

Revisiting The Fried Chicken Recipe, Zachary B. Pohlman

Notre Dame Law Review Reflection

Twenty-five years ago, Gary Lawson introduced us to legal theory’s tastiest analogy. He told us about a late-eighteenth-century recipe for making fried chicken and how we ought to interpret it. Lawson’s pithy essay has much to be praised. Yet, even twenty-five years later, there remains more to be said about legal theory’s most famous recipe. In particular, there remains much more to be said about the recipe’s author, a person (or, perhaps, group of people) whom Lawson does not discuss. Lawson’s analysis of the recipe leads him to an “obvious” conclusion: the recipe’s meaning is its original public meaning. If …

Bostock And Textualism: A Response To Berman And Krishnamurthi, Andrew Koppelman

Notre Dame Law Review Reflection

The Bostock Court adopted an argument I’ve been making for years, and that I pressed upon it in an amicus brief: that discrimina-tion against gay people is necessarily sex discrimination. I defended Justice Neil Gorsuch’s opinion for the Court in my article, Bostock, LGBT Discrimination, and the Subtractive Moves, which catalogues various common but unsuccessful strategies for evading the force of the sex discrimination argument. That piece, originally drafted before the Supreme Court’s decision as a critique of arguments by Court of Appeals judges, was easy to revise and update. The dissenters, Justices Samuel Alito (joined by Clarence …

The First Amendment And Military Justice: Threats To Political Neutrality, Joshua Paldino

Notre Dame Law Review Reflection

This backdrop illustrates a throughline that runs throughout, and creates tension within, the Military Justice system. On the one hand, there is a need to protect the individual rights of servicemembers. This concern is driven (in part) by the intuition reflected in Judge O’Connor’s opening sentences—those sworn to protect constitutional liberties should surely enjoy the benefits of that which they protect. On the other, individual rights protections must yield, to some degree, to the needs of military life and military exigency. Of course, "to some degree" is the space in which debate and maneuverability resides. But while discretionary space certainly …

The Constitutional Law Of Interpretation, Anthony J. Bellia Jr., Bradford R. Clark

Notre Dame Law Review

The current debate over constitutional interpretation often proceeds on the assumption that the Constitution does not provide rules for its own interpretation. Accordingly, several scholars have attempted to identify applicable rules by consulting external sources that governed analogous legal texts (such as statutes, treaties, contracts, etc.). The distinctive function of the Constitution—often forgotten or overlooked—renders these analogies largely unnecessary. The Constitution was an instrument used by the people of the several States to transfer a fixed set of sovereign rights and powers from one group of sovereigns (the States) to another sovereign (the federal government), while maintaining the “States” as …

Democracy's Forgotten Possessions: U.S. Territories' Right To Statehood Through Constitutional Liquidation, Joshua Stephen Ebiner

Notre Dame Law Review

This Note argues that the Territories must be granted statehood consistent with the equal footing doctrine. This thesis does not challenge Congress’s power to acquire or govern territory, or its constitutional authority to admit (and place reasonable conditions on the admission of) territory into the Union as states. These matters have long been settled through constitutional practice. Neither does this thesis suggest that acquired territory must be immediately annexed into the Union, since there are valid reasons to delay such a decision. Instead, the claim is that permanently inhabited territories that have longstanding, constitutionally significant relationships with the United States …

State Digital Services Taxes: A Good And Permissible Idea (Despite What You Might Have Heard), Young Ran (Christine) Kim, Darien Shanske

Notre Dame Law Review

Tax systems have been struggling to adapt to the digitalization of the economy. At the center of the struggles is taxing digital platforms, such as Google or Facebook. These immensely profitable firms have a business model that gives away “free” services, such as searching the web. The service is not really free; it is paid for by having the users watch ads and tender data. Traditional tax systems are not designed to tax such barter transactions, leaving a gap in taxation.

One response, pioneered in Europe, has been the creation of a wholly new tax to target digital platforms: the …

Put Mahanoy Where Your Mouth Is: A Closer Look At When Schools Can Regulate Online Student Speech, Courtney Klaus

Notre Dame Law Review

This Note proposes a way to approach online student speech in three different contexts: cyberbullying, online threats, and other kinds of incendiary speech. Each approach is informed by a combination of lower court precedent, historical trends, and Supreme Court dicta to piece together when exceptions to online student speech protection may apply. Each analysis provides an explanation of how Tinker can and should be used to justify school discretion over particular kinds of online speech. Part I provides the history behind how the First Amendment has been used to protect public school student speech and discusses the unique issues the …

Ndls Communicator: Week Of 11.28.22, Notre Dame Law School

NDLS Communicator

The Latest News

• Notre Dame Law Review hosts symposium on 'Liberalism, Christianity, and Constitutionalism'
• Judge Theodor Meron delivers ND Law’s 2022 Peace Through Law Lecture in London
• DEI Podcast, Episode 3: Understanding Imposter Feelings
• The Religious Liberty Clinic represents Sikhs, Muslims, Bruderhof, and Jewish groups defending a Rastafarian inmate forcibly shaved bald
• Sadie Blanchard's article, "Contracts Without Courts or Clans: How Business Networks Govern Exchange" has been published in the Georgia Law Review.
• Randy Kozel's new paper, “Government Employee Speech and Forum Analysis” was published in the Journal of Free Speech and challenges the idea that free speech claims by …

Mmu: 11/28/22–12/04/22, Student Bar Association

Monday Morning Update

This Week @ NDLS

HOW TO ATTACK AN EXAM

CLS Prayer Meeting

2023 Summer Fellowship

Information Session: 2023 Program of Church, State & Society Summer Fellowship

Interview Workshop

Private Law Workshop

Mass Times

Commons Daily Menu

General Announcements

Kresge Law Library: Study Aids

Applying for the London Programme 2023/24

1L of the Week: McKenzie Brummond

2Ls Taking Ls: Lizzy Forzley

Ask a 3L: Julia Fissore-O'Leary

Sports Report by Stephen Nugent

Jackie's [Kamel] Corner

Ndls Communicator: Week Of 11.21.22, Notre Dame Law School

NDLS Communicator

The Latest News

• Dean G. Marcus Cole to be inducted into the American College of Bankruptcy
• Notre Dame Religious Liberty Clinic defends Muslim man denied permission to pray outside his cell
• Notre Dame Law Review published Volume 98, Issue 1: Jeff Pojanowski's co-authored book review, "Recovering Classical LegalConstitutionalism: A Critique of Professor Vermeule's New Theory" is published in the issue.
• Randy Kozel wrote a book review of Philip Hamburger's book, "Purchasing Submission: Conditions, Power, and Freedom."
• Mary Ellen O'Connell's article, “Twenty Years of Drone Attacks” was published by EJIL:Talk.
• Sam Bray spoke at Catholic University last week on the Influence …

Mmu: 11/21/22–11/27/22, Student Bar Association

Monday Morning Update

Note from the Editor

This Week @ NDLS

1L Registration

"How to Excel on Law School Exams" - Professor Panel for 1Ls

Mass Times

Commons Daily Menu

November 23 - November 27 Holiday Break

General Announcements

SBA Thanksgiving Food Drive

Notre Dame in Prison

Kresge Law Library: Research Assistant Opportunity

Law school students win intramural football championship

Dean G. Marcus Cole To Be Inducted Into American College Of Bankruptcy, Kevin Allen

2019–Present: G. Marcus Cole

G. Marcus Cole, the Joseph A. Matson Dean and Professor of Law at Notre Dame Law School, will be inducted into the American College of Bankruptcy in recognition of his exceptional contributions to the bankruptcy and insolvency practice, the association announced on November 17.

Perma.cc

Twenty Years Of Drone Attacks, Mary Ellen O'Connell

NDLS in the News

On November 2, 2002, the United States conducted its first targeted killings using a drone. CIA agents based in Djibouti launched the drone’s two Hellfire missiles at a vehicle traveling in rural Yemen, killing six...

Ndls Communicator: Week Of 11.13.22, Notre Dame Law School

NDLS Communicator

The Latest News

• ND Law honors Professor Judy Fox and alumna Tia Paulette at the inaugural Rev. David T. Link Public Interest Banquet
• ND Law connects students and law firms at Meet the Employers Diversity Fellowship event
• 'Religious Liberty Issues in Healthcare' panelists offer insights on legal and cultural challenges in healthcare
• Sherif Girgis was quoted in the NRB article, "303 Creative Set to Be Heard by the Supreme Court."

Student News

• ND Law Moot Court Board hosts seventh annual religious freedom tournament
• Religious Liberty Student Cohort for 2022-2023 named

Events

• Monday, Nov. 14: SBA Thanksgiving Food Drive is happening …

Mmu: 11/14/22–11/20/22, Student Bar Association

Monday Morning Update

This Week @ NDLS

Mass Times

Commons Daily Menu

General Announcements

1L of the Week: Alesondra Cruz

2Ls Taking Ls: Tori Hust

Ask a 3L: Andrew Scarafile

LLM Feature: Rose Higgins

Sports Report by Stephen Nugent

Jackie's [Kamel] Corner

Ndls Communicator: Week Of 11.07.22, Notre Dame Law School

NDLS Communicator

The Latest News

• Notre Dame Law Review hosts symposium on Unconstitutional Conditions and Religious Liberty
• Sadie Blanchard's paper, “Nominal Damages As Vindication,” was reviewed in Jotwell.
• Avishalom Tor's article, "Digital Nudging: Potential and Pitfalls," was published in the October 2022 issue of the CPI TechREG Chronicle.
• Jay Tidmarsh was quoted in the Billboard article, "One Year Later, The Massive Litigation Over Astroworld Is Just Getting Started."
• Nicole Garnett and Fr. Pat Reidy wrote “Religious Covenants” which explores the phenomenon of religiously motivated deed restrictions.
• Sherif Girgis was a panelist in a talk about free speech held at the US National …

Mmu: 11/07/22–11/13/22, Student Bar Association

Monday Morning Update

This Week @ NDLS

Mass Times

Commons Daily Menu

General Announcements

1L of the Week: Hadiah Mabry

2Ls Taking Ls: Sandy Weir

Ask a 3L: Laura Mahoney

LLM Feature: Porta Chigbu

Sports Report by Stephen Nugent

Jackie's Corner

Privacy Qui Tam, Peter Ormerod

Notre Dame Law Review

Privacy law keeps getting stronger, but surveillance-based businesses have proven immune to these new legal regimes. The disconnect between privacy law in theory and in practice is a multifaceted problem, and one critical component is enforcement.

Today, most privacy laws are enforced by governmental regulators—the Federal Trade Commission, the nascent California Privacy Protection Agency, and state attorneys general. An enduring impasse for proposed privacy laws is whether to supplement public enforcement by using a private right of action to authorize individuals to enforce the law.

Both of these conventional enforcement schemes have significant shortcomings. Public enforcement has proven inadequate because …

Religious Liberty And Judicial Deference, Mark L. Rienzi

Notre Dame Law Review

Many of the Supreme Court’s most tragic failures to protect constitutional rights—cases like Plessy v. Ferguson, Buck v. Bell, and Korematsu v. United States—share a common approach: an almost insuperable judicial deference to the elected branches of government. In the modern era, this approach is often called “Thayerism,” after James Bradley Thayer, a nineteenth-century proponent of the notion that courts should not invalidate actions of the legislature as unconstitutional unless they were clearly irrational. Versions of Thayerism have been around for centuries, predating Thayer himself.

The Supreme Court took a decidedly Thayerian approach to the First Amendment …

Emergency-Docket Experiments, Edward L. Pickup, Hannah L. Templin

Notre Dame Law Review Reflection

This short Essay is the first to analyze the Court’s recent emer-gency-docket experiments and discuss their effectiveness. We conclude that the Court’s interventions have real benefits: giving emergency cases greater procedure improves transparency, boosts public confidence in the Court, and gives guidance to litigants and lower courts.

But experiments are often iterative—it is unusual to hit the right result the first time. So too with the Court’s emergency-docket tinkering. In tweaking its stay factors, the Justices have failed to give suffi-cient guidance to litigants about how those factors will apply in the future. Plus, in transferring Ramirez from the emergency …

Deepfake Fight: Ai-Powered Disinformation And Perfidy Under The Geneva Conventions, David Nicholas Allen

Notre Dame Journal on Emerging Technologies

Deception and disinformation are as much a part of the battlefield as bullets and bombs. However, just like with bullets and bombs, if the law does not properly regulate a capability’s use the capability could degrade faith in the law. In this respect, this paper examines deepfake technology, a modern artificial intelligence-based capability that can generate superficially-perfect yet wholly invented media content. The paper looks ahead to its potential future applications in armed conflict, processes the ways in which current law contemplates such deception, and distills recommendations for improving governance where needed.