Law Commons^™

Market Power Without Market Definition, Daniel A. Crane

Notre Dame Law Review

Antitrust law has traditionally required proof of market power in most cases and has analyzed market power through a market definition/market share lens. In recent years, this indirect or structural approach to proving market power has come under attack as misguided in practice and intellectually incoherent. If market definition collapses in the courts and antitrust agencies, as it seems poised to do, this will rupture antitrust analysis and create urgent pressures for an alternative approach to proving market power through direct evidence. None of the leading theoretic approaches—such as the Lerner Index or a search for supracompetitive profits—provides a robust …

Parting The Chevron Sea: An Argument For Chevron's Greater Applicability To Cabinet Than Independent Agencies, Andrew T. Bond

Notre Dame Law Review

This Note argues that cabinet agencies are better suited to receive Chevron deference than independent agencies because voters should desire such policy decisions to be made by those closest to electoral accountability, rather than unelected Article III judges with life-tenure. In other words, the judiciary should accept the countermajoritarian difficulty as fundamentally true and review cabinet agency decisions in light of Chevron deference. Part I examines the revolutionary decision of Chevron and its aftermath. Central to Part I is an inquiry into whether Chevron should be applied on a case-by-case or across-the-board basis, and whether Chevron has usurped the judiciary’s …

Procedural Rights At Sentencing, Carissa Byrne Hessick, F. Andrew Hessick

Notre Dame Law Review

In determining which constitutional procedural rights apply at sentencing, courts have distinguished between mandatory and discretionary sentencing systems. For mandatory systems—systems that limit sentencing factors and specify particular punishments based on particular facts—defendants enjoy important rights including the right to a jury, the right to proof beyond a reasonable doubt, the right to notice of potential sentencing aggravators, and the right not to be sentenced based on ex post facto laws. By contrast, for discretionary systems—systems that leave the determination of sentencing factors and how much punishment to impose based on particular facts to the judge’s discretion—defendants do not enjoy …

Due Process Disaggregation, Jason Parkin

Notre Dame Law Review

One-size-fits-all procedural safeguards are becoming increasingly suspect under the Due Process Clause. Although the precise requirements of due process vary from context to context, the Supreme Court has held that, within any particular context, the Due Process Clause merely requires one-size-fits-all procedures that are designed according to the needs of the average or typical person using the procedures. As the Court explained when announcing the modern approach to procedural due process in Mathews v. Eldridge, the due process calculus must be focused on “the generality of cases, not the rare exceptions.” A more granular approach to due process rules, the …

A House Divided: When State And Lower Federal Courts Disagree On Federal Constitutional Rights, Wayne A. Logan

Notre Dame Law Review

This Article provides the first in-depth examination of state-federal concurrent constitutional authority and does so by focusing on a context in which its consequences are most problematic: within individual states. While a handful of articles over the years have examined state court power vis-a-vis federal constitutional questions more generally, no systematic effort has been undertaken to examine intrastate, state-federal conflict on federal constitutional questions. This Article redresses this deficit, using as its doctrinal locus federal constitutional criminal procedure, with its unique impact on government power and individual liberty and privacy.

The Governance Structure Of Shadow Banking: Rethinking Assumptions About Limited Liability, Steven L. Schwarcz

Notre Dame Law Review

In an earlier article, I argued that shadow banking—the provision of financial services and products outside of the traditional banking system, and thus without the need for bank intermediation between capital markets and the users of funds—is so radically transforming finance that regulatory scholars need to rethink their basic assumptions. This Article attempts to rethink the corporate governance assumption that owners of firms should always have their liability limited to the capital they have invested. In the relatively small and decentralized firms that dominate shadow banking, equity investors tend to be active managers. Limited liability gives these investor-managers strong incentives …

Privatizing Mass Settlement, Jaime Dodge

Notre Dame Law Review

From BP’s oil spill in the Gulf of Mexico to the National Football League’s (NFL) inability to honor Super Bowl tickets, corporate defendants are contravening the established litigation wisdom and offering full compensation to victims—without haggling to pay pennies on the dollar, without stall tactics and frivolous motions; indeed, without any litigation at all. These offers have often been dismissed as rare one-off exceptions to the rule.

This Article challenges that claim, suggesting that these private mass settlements are instead relatively common features in our aggregate litigation system. The Article explores the reasons that, contrary to traditional wisdom, defendants would …

Labor In Faith: A Comparative Analysis Of Hosanna-Tabor V. Eeoc Through The European Court Of Human Rights' Religious Employer Jurisprudence, Francesca M. Genova

Notre Dame Law Review

This Note uses the European Court of Human Rights’ framework to analyze the Supreme Court’s decision in Hosanna-Tabor v. Equal Employment Opportunity Commission, which recognizes a “ministerial exception” for religious organizations as a defense to certain employment claims. It argues that the unanimous Supreme Court in Hosanna-Tabor examines factors similar to those of its European counterpart, but protects religious liberties more robustly by avoiding some of the European Court’s preoccupations. Yet, the European Court’s assessment anticipates the difficulties of applying the “ministerial exception” in future cases.

The Scope Of Precedent, Randy J. Kozel

Journal Articles

The scope of Supreme Court precedent is capacious. Justices of the Court commonly defer to sweeping rationales and elaborate doctrinal frameworks articulated by their predecessors. This practice infuses judicial precedent with the prescriptive power of enacted constitutional and statutory text. The lower federal courts follow suit, regularly abiding by the Supreme Court's broad pronouncements. These phenomena cannot be explained by—and, indeed, oftentimes subvert—the classic distinction between binding holdings and dispensable dicta.

This Article connects the scope of precedent with recurring and foundational debates about the proper ends of judicial interpretation. A precedent's forward-looking effect should not depend on the superficial …

Reaching Backward And Stretching Forward: Teaching For Transfer In Law School Clinics, Shaun Archer, James Parry Eyster, James J. Kelly Jr., Tonya Kowalski, Colleen F. Shanahan

Journal Articles

In thinking about education, teachers may spend more time considering what to teach than how to teach. Unfortunately, traditional teaching techniques have limited effectiveness in their ability to help students retain and apply the knowledge either in later classes or in their professional work. What, then, is the value of our teaching efforts if students are unable to transfer the ideas and skills they have learned to later situations?

Teaching for transfer is important to the authors of this article, four clinical professors and one psychologist. The purpose of this article is to provide an introduction to some of the …

Nfib V. Sebelius And The Transformation Of The Taxing Power, Barry Cushman

Journal Articles

In National Federation of Independent Business v. Sebelius, Chief Justice Roberts wrote for a majority of five Justices in holding that the “shared responsibility payment” required by the Patient Protection and Affordable Care Act (“ACA”) constituted an imposition of a “tax” rather than a “penalty.” Thus, even though the Chief Justice and four other Justices had concluded that the provision was not a legitimate exercise of the commerce power, the Court held that it was a valid exercise of the taxing power.

The origin of the distinction between taxes and penalties in taxing power jurisprudence is found in the 1922 …

Ndls Update 10/28/2014, Notre Dame Law School

NDLS Update

NDLS Update is a weekly email newsletter of news, events, and opportunities for Law School faculty and staff.

Mmu: 10/27/14–11/02/14, Student Bar Association

Monday Morning Update

Monday Morning Update "MMU" oct. 27 - Nov. 2

Check out the Notre Dame pumpkins in the Alumni Center this week.

Monday, Oct. 27

• Rosary
• Geoffrey Bennett will present on the London Program
• SBA Meeting

Tuesday, Oct. 28

• Multicultural Student Programs and Services: Defamation
• CDO presents A Summer with the Minnesota Vikings
• Professor Lunch Series: Professor Michael Kirsch
• Third Annual Etiquette Dinner
• Phi Alpha Delta Hoynes Chapter Induction
• World Series

Wednesday, Oct. 29

• The Future Prosecuting Attorney's Council presents John Maciejczyk, Cyber Crime
• CDO presents Judicial Clerkship Process Overview
• Indiana Court of Appeals Oral Argument
• Campus Ministry "Theology on Tap" …

Ndls Update 10/21/2014, Notre Dame Law School

NDLS Update

NDLS Update is a weekly email newsletter of news, events, and opportunities for Law School faculty and staff.

Hoynes Code, The, Notre Dame Law School

Hoynes Code

A COMPILATION OF FACULTY RESOLUTIONS AND ADMINISTRATIVE REGULATIONS GOVERNING NOTRE DAME LAW SCHOOL

This code governs legal education at the University of Notre Dame in all programs and in all locations.

Ndls Update 10/14/2014, Notre Dame Law School

NDLS Update

NDLS Update is a weekly email newsletter of news, events, and opportunities for Law School faculty and staff.

Mmu: 10/13/14–10/19/14, Student Bar Association

Monday Morning Update

"MMU" Monday Morning Update (Oct. 13-19)

Fall Break Next Week

Monday, Oct. 13

• Prospective Student Open House
• CDO presents "Student Networking Experiences"
• Christian Legal Society Meeting
• Education Law Forum presents "New Orleans and School Choice"
• ND Law and Economics Seminar presents "The Goals of the Corporation under Shareholder Primacy: Just Profit--Or Social Responsibility and Religious Exercise Too?
• CDO presents Hidden But Obvious Tips for Succeeding in Your Legal Career
• Rosary
• SBA Meeting

Tuesday, Oct. 14

• Mandatory 1L Meeting
• Halloween Costume Idea: Cobra Kai
• Salon Series at the Snite Museum
• Men's Soccer v. Northwestern

Wednesday, Oct. 15

• Faculty Meeting
• The Federalist …

Ndls Update 10/07/2014, Notre Dame Law School

NDLS Update

NDLS Update is a weekly email newsletter of news, events, and opportunities for Law School faculty and staff.

Red Mass 2014, Notre Dame Law School

The Red Mass

The Red Mass

Votive Mass of the Holy Spirit

October 6, 2014, 5:15 pm

Basilica of the Sacred Heart

University of Notre Dame, Notre Dame, Indiana

Mmu: 10/06/14–10/12/14, Student Bar Association

Monday Morning Update

"MMU" Monday Morning Update (Oct. 6 - 12)

Monday, Oct. 6

• Red Mass
• Rosary
• No SBA Meeting
• Ultimate Frisbee

Tuesday, Oct. 7

• Taco Tuesday
• Make a Digital Comic with Pixton

Wednesday, Oct. 8

• Dean Newton's Outlining Session for 1Ls
• 3D Printing Contest
• The Annual Human Dignity Lecture

Thursday, Oct. 9

• Breast Cancer Prevention Trivia Lunch
• Nanovic Graduate Student Social
• Hispanic Law Student Association & the CDO present "Practicing in South Bend"

Friday, Oct. 10

• Law Advisory Council Board on campus
• JICL Presents "Does Insider Trading Law Violate Human Rights?"
• SCELF Meeting
• Football Pep Rally
• Galilee Meeting
• Board Room Insights Lecture …

2014–2015 Law School Bulletin, Notre Dame Law School

Bulletins of Information

CONTENTS

Academic Requirements

• Requirements for Graduation and Good Academic Standing for the J.D. Program
• Graduation Honors
• Grade and Academic Standing

Law School Grading Policy Summary

• Grade Reports
• Co-curricular Courses
• Course Requirements
• Change of Regulations

The Hoynes Code: A Compilation of Faculty Resolutions and Administrative Regulations Governing Notre Dame Law School--Revised October 15, 2014

An Insider's Guide To Notre Dame Law School, Notre Dame Law School

About the Law School

We are thrilled to be among the first to receive you into our family. We know that this is an exciting time for you and that, if you are anything like we were just a couple of years ago, you probably have plenty of questions about law school and Notre Dame. That‘s why we've prepared the Guide. We hope it will answer many of your questions and that it will provide a window into Notre Dame Law School. We also hope that once you look through that window, you‘ll be as eager to join us as we are to have …

Improving Patent Quality With Applicant Incentives, Stephen Yelderman

Journal Articles

This Article offers an alternative approach to the widely recognized problem of low-quality patents being granted by the patent office. Traditional reforms have focused almost exclusively on making the patent office more effective at examination. This Article instead looks at patent quality from an applicant’s perspective, and evaluates how certain patent rules might be encouraging inventors to file higher or lower quality claims. It proposes a variety of reforms to take advantage of applicants’ existing interests in obtaining patents that are both broad enough to create infringing activity and narrow enough to be valid. The result is a distinctive set …

Auctioning Class Settlements, Jay Tidmarsh

Journal Articles

Although they promise better deterrence at a lower cost, class actions are infected with problems that can keep them from delivering on this promise. One of these problems occurs when the agents for the class (the class representative and class counsel) advance their own interests at the expense of the class. Controlling agency cost, which often manifests itself at the time of settlement, has been the impetus behind a number of class-action reform proposals. This Article develops a proposal that, in conjunction with reforms in fee structure and opt-out rights, controls agency costs at the time of settlement. The idea …

Interpreting Secretary Perkins, Barry Cushman

Journal Articles

This essay is my contribution to an exchange with Professor Daniel R. Ernst of Georgetown University Law Center concerning the timing of a visit by Chief Justice Hughes and his wife to the Pennsylvania summer home of Justice Owen Roberts. In the 1950s, former Secretary of Labor Frances Perkins recounted in the oral history interview she gave to Columbia University that Mrs. Roberts had reported to her that Hughes and Roberts had held extended, private conversations during that visit. It has been argued by some scholars that the visit took place during the summer of 1936, shortly after the Court …

Wilderness Exceptions, John Copeland Nagle

Journal Articles

This Article considers when activities that are inconsistent with wilderness are nonetheless allowed in it. That result happens in four different ways: (1) Congress decided not to designate an area as “wilderness” even though the area possesses wilderness characteristics; (2) Congress draws the boundaries of a wilderness area to exclude land that possesses wilderness characteristics because Congress wants to allow activities there that would be forbidden by the Act; (3) Congress specifically authorizes otherwise prohibited activities when it establishes a new wilderness area; or (4) Congress acts to approve contested activities in response to a controversy that arises after a …

“All Good Things Flow . . . ”: Rule Of Law, Public Goods, And The Divided American Metropolis, James J. Kelly Jr.

Journal Articles

This essay is a review of and a response to Urban Decay, Austerity, and Rule of Law, an article written by Brent White, Simone Sepe, and Saura Masconale. Building upon an intuitively compelling social contract theory insight, the article sets out the theoretical and empirical cases for the authors’ contention that sustained investment in highly visible, essential local public goods provides crucial support for rule of law. White, Sepe, and Masconale offer their theory as a “make ‘gov’ not war” alternative to the Broken Windows Theory, which underlies ordermaintenance policing strategies. In the final section of the piece, the authors …

Ndls Update 09/30/2014, Notre Dame Law School

NDLS Update

NDLS Update is a weekly email newsletter of news, events, and opportunities for Law School faculty and staff.

The James Keller Award By The Christophers, The Christophers

1975–1999: David T. Link

In 2014, Fr. David Link, was awarded the James Keller Award in recognition of putting his faith into action to change the world for better by serving in prison ministry.

The Christophers were founded in 1945 by Maryknoll priest Father James Keller who saw there was a need for people of all faiths to engage in constructive action based on gospel values.

Corporate Social Responsibility For Enforcement Of Labor Rights: Are There More Effective Alternatives?, Barbara Fick

Journal Articles

This article addresses the concept of corporate social responsibility (hereinafter CSR) as it relates to labor rights. It considers the following issues: is the CSR model, as evidenced by the adoption of corporate codes of conduct, effective in protecting labor rights?; and is this model the best way to protect labor rights? These issues are examined from two perspectives: practical and philosophical. Lastly, some alternative enforcement mechanisms are considered and their respective advantages and disadvantages for purposes of ensuring labor rights are discussed.