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Articles 61 - 90 of 107
Full-Text Articles in Law
The Power Of The "Internet Of Things" To Mislead And Manipulate Consumers: A Regulatory Challenge, Kate Tokeley
The Power Of The "Internet Of Things" To Mislead And Manipulate Consumers: A Regulatory Challenge, Kate Tokeley
Notre Dame Journal on Emerging Technologies
The “Internet of Things” revolution is on its way, and with it comes an unprecedented risk of unregulated misleading marketing and a dramatic increase in the power of personalized manipulative marketing. IoT is a term that refers to a growing network of internet-connected physical “smart” objects accumulating in our homes and cities. These include “smart” versions of traditional objects such as refrigerators, thermostats, watches, toys, light bulbs, cars, and Alexa-style digital assistants. The corporations who develop IoT are able to utilize a far greater depth of data than is possible from merely tracking our web browsing in regular online environments. …
Note: Improving The Defend Trade Secrets Act Of 2016: Against Preempting State Trade Secret Law, Victoria Hanson
Note: Improving The Defend Trade Secrets Act Of 2016: Against Preempting State Trade Secret Law, Victoria Hanson
Notre Dame Journal on Emerging Technologies
In order to better protect companies from losing their valuable trade secrets and prevent irreparable harm, Congress enacted the Defend Trade Secrets Act of 2016 (DTSA),8 the first federal civil protection given for trade secrets. In this paper, I argue that the DTSA has indeed not met its supposed goals, but the solution does not lie in preempting state law. Firstly, I explain the history, goals, and provisions of the DTSA and how it has failed to meet the original goals over the past three years. Secondly, I explain the argument for the DTSA to preempt state law and its …
Environmental Permits: Public Property Rights In Private Lands And The Extraction And Redistribution Of Private Wealth, Jason S. Johnston
Environmental Permits: Public Property Rights In Private Lands And The Extraction And Redistribution Of Private Wealth, Jason S. Johnston
Notre Dame Law Review
Back in 1995, Professor Epstein famously termed such use of the permit power a “racket,” and as observed very recently by Dave Owen, still today many landowners and conservative critics would agree with the Supreme Court’s description of the process (in Nollan v. California Coastal Commission) as an “out-and-out plan of extortion.” However extortionate such deals may be, regulators with permit power may require landowners to bargain with them before developing their land or else face legal sanctions. This Essay explores in more detail how such bargaining has played out under two of the most important permit regimes in …
Stock Market Value And Deal Value In Appraisal Proceedings, Robert T. Miller
Stock Market Value And Deal Value In Appraisal Proceedings, Robert T. Miller
Notre Dame Law Review
This Essay considers two methods of valuing public companies in the context of appraisal proceedings under section 262 of the Delaware General Corporation Law (DGCL). The first method relies on the efficient capital markets hypothesis (ECMH) and values the company based on the market price of its shares before any public disclosure of the possibility of a transaction (the unaffected market price). The second relies on the price that an unrelated party agrees to pay to acquire the company in a transaction negotiated at arm’s length after a robust sales process by the selling board (the deal price). Both the …
The Injunction Function: How And Why Courts Secure Property Rights In Patents, Adam Mossoff
The Injunction Function: How And Why Courts Secure Property Rights In Patents, Adam Mossoff
Notre Dame Law Review
This Essay addresses one aspect of this legal and policy debate concerning remedies in patent law: how and why courts presumptively secured patent owners with injunctions against ongoing or willful infringements of their property rights. Prompted by the United States Supreme Court’s 2006 decision in eBay v. MercExchange, which created a new four-factor test for issuing injunctions on a finding of ongoing infringement of a valid patent, there is a growing body of scholarly commentary on the role of injunctive remedies in securing property rights in new technological innovations. Much of this commentary focuses on how eBay has resulted in …
Who Has The Right?: Analysis Of Second Amendment Challenges To 18 U.S.C. § 922(G)(4), Alexandra T. Cline
Who Has The Right?: Analysis Of Second Amendment Challenges To 18 U.S.C. § 922(G)(4), Alexandra T. Cline
Notre Dame Law Review
This Note argues that courts should decide challenges to § 922(g)(4) solely under the first step of the test, based on the notion that individuals subject to § 922(g)(4) fall outside the scope of Second Amendment protection. Thus, under the two-part test, the law would not burden conduct protected by the Amendment, rendering step two unnecessary for at least the vast majority of § 922(g)(4) challenges. This Note provides three independent ways in which courts could deem § 922(g)(4) outside the purview of the Second Amendment, and each should be considered a permissible approach.
The first Part of this Note …
The Compensation Constraint And The Scope Of The Takings Clause, Thomas W. Merrill
The Compensation Constraint And The Scope Of The Takings Clause, Thomas W. Merrill
Notre Dame Law Review
The idea I wish to explore in this Essay is whether the established methods for determining just compensation can shed light on the meaning of other issues that arise in litigation under the Takings Clause. Specifically, is it possible to “reverse engineer” the Takings Clause by reasoning from settled understandings about how to determine just compensation in order to reach certain conclusions about when the Clause applies, what interests in private property are covered by the Clause, and what does it mean to take such property? The proposed exercise is positive or descriptive in nature rather than normative. The hypothesis …
Valuation As A Challenge For Tax Administration, Leandra Lederman
Valuation As A Challenge For Tax Administration, Leandra Lederman
Notre Dame Law Review
Valuation issues have long posed challenges for the U.S. federal tax system. This is not just because of questions about what technique will most accurately value particular types of property. A key problem for tax administration is that taxpayers have a financial incentive to claim erroneous, self-serving valuations. This Essay analyzes tax valuation through this tax compliance lens. In so doing, it highlights the importance that third parties to the taxpayer-government relationship act at arm’s length from the taxpayer. It also explains why penalties are insufficient to deter erroneous self-reported valuations. The Essay also draws on the tax compliance perspective …
June Medical And The Marks Rule, Owen P. Toepfer
June Medical And The Marks Rule, Owen P. Toepfer
Notre Dame Law Review
This Note, proceeding in three parts, describes the history of the Court’s abortion jurisprudence, evaluates the current state of the Marks rule, and demonstrates that Chief Justice Roberts’s concurrence in June Medical is the controlling opinion for Marks purposes under each definition of “narrowest” that several federal circuit courts of appeals employ. Part I first traces the historical arc of abortion jurisprudence from Roe v. Wade to June Medical and thereafter provides background on the history of and academic reactions to the Marks rule. Part II considers the various approaches to the Marks rule taken by the several federal circuits …
Quantitative Valuation In Environmental Law, Arden Rowell
Quantitative Valuation In Environmental Law, Arden Rowell
Notre Dame Law Review
Quantitative valuations of environmental impacts affect and sometimes determine the substance and stringency of many environmental laws. At the same time, a constellation of psychological factors makes environmental impacts unusually difficult for individuals to see, understand, and care about. As a result, the environmental valuations that inform environmental law are particularly vulnerable to contextual cues, small shifts in framing, and methodological choice, and can lead to sincere but wildly varying valuations of the same underlying environmental impacts. These distortions become increasingly apparent when valuations are quantified, and in fact can be used predictably to push quantified valuations “up” and “down” …
Note: Scraping Photographs, Maggie King
Note: Scraping Photographs, Maggie King
Notre Dame Journal on Emerging Technologies
This note explores whether any existing laws prohibit scraping photographs, as suggested by Facebook and other big tech companies’ recent actions against Clearview. After examining each potential claim, this note argues that no existing law should be construed to hold Clearview liable for scraping photographs, because doing so would create inconsistencies in existing law. But also, the apparent legality of Clearview’s scraping activity presents an argument for a reversal of the recent trend towards laws that, guided by the principle of a free and open internet, favor scraping. Rather, the apparent legality of activity that ultimately enables otherwise unrestrained modern …
Valuation Blunders In The Law Of Eminent Domain, Richard A. Epstein
Valuation Blunders In The Law Of Eminent Domain, Richard A. Epstein
Notre Dame Law Review
In dealing with the valuation problem, I will bracket these estimation issues in order to look to different and disturbing types of difficulties in the valuation enterprise. The law of eminent domain starts with the implicit assumption that the government is in general a good actor whose motives and laudable and whose behavior does not need excessive judicial oversight. Hence the general norm of judicial deference often applies to valuation decisions. In the cases that I shall review, as well as others, a general pattern emerges, whereby all doubtful valuation questions that arise dealing with key problems are at best …
The Catholic Church And The Paycheck Protection Program: Assessing Nondiscrimination After Trinity Lutheran And Espinoza, Elizabeth Totzke
The Catholic Church And The Paycheck Protection Program: Assessing Nondiscrimination After Trinity Lutheran And Espinoza, Elizabeth Totzke
Notre Dame Law Review
This Note argues the inclusion of houses of worship and the subsequent dispersal of PPP funds to the Catholic Church was explicitly constitutional. Applying the lens of the Supreme Court’s recently announced nondiscrimination principle, this Note considers the ramifications of the SBA’s official policy and explores the constitutional justification for the SBA’s ad hoc PPP policy. In fact, under the nondiscrimination principle, this Note concludes that the SBA’s policy shift was not just constitutionally permissible, but probably constitutionally required.
A Variable Number Of Cheers For Viewpoint-Based Regulations Of Speech, R. George Wright
A Variable Number Of Cheers For Viewpoint-Based Regulations Of Speech, R. George Wright
Notre Dame Law Review Reflection
If there is one thing we think we know about the First Amendment, it is that speech restrictions based on viewpoint are especially objectionable. The Supreme Court has declared that “[i]f there is a bedrock principle underlying the First Amendment, it is that the government may not prohibit the expression of an idea simply because society finds the idea itself offensive or disagreeable.” For this proposition, the Court has on one occasion cited thirteen of its own precedents.
Much more broadly, the Court has also held that a government “has no power to restrict expression because of its message, its …
Sonner V. Premier Nutrition Corp., Ruth Dapper, Bryce Young
Sonner V. Premier Nutrition Corp., Ruth Dapper, Bryce Young
Notre Dame Law Review Reflection
When sitting in diversity jurisdiction, must a federal court apply federal equitable principles when deciding state law claims, even if state law may provide a different outcome? That was the question before the United States Court of Appeals for the Ninth Circuit in the case of Sonner v. Premier Nutrition Corp. Although the Ninth Circuit’s published opinion relies on “seventy-five years” of unchanged law, the opinion joins a long list of cases that continue to help clarify the tenets from Erie Railroad Co. v. Tompkins and inform the courts and practitioners on the relationship between state and federal authority …
Letter From The Editor, Fon Bisalbutr
Letter From The Editor, Fon Bisalbutr
Notre Dame Journal of International & Comparative Law
No abstract provided.
Legitimacy In The International Order: The Continuing Relevance Of Sovereign States, Brad R. Roth
Legitimacy In The International Order: The Continuing Relevance Of Sovereign States, Brad R. Roth
Notre Dame Journal of International & Comparative Law
No abstract provided.
The Widening Gyre: Legal Formalism And International Law’S Sense Of Place, Christopher R. Rossi
The Widening Gyre: Legal Formalism And International Law’S Sense Of Place, Christopher R. Rossi
Notre Dame Journal of International & Comparative Law
No abstract provided.
Symposium Debate Transcript: The Promise Of International Law: Realism Versus Legalism, Journal Of International & Comparative Law, Notre Dame Law School
Symposium Debate Transcript: The Promise Of International Law: Realism Versus Legalism, Journal Of International & Comparative Law, Notre Dame Law School
Notre Dame Journal of International & Comparative Law
No abstract provided.
Modern Day Extradition Practice: A Case Analysis Of Julian Assange, Daniela J. Restrepo
Modern Day Extradition Practice: A Case Analysis Of Julian Assange, Daniela J. Restrepo
Notre Dame Journal of International & Comparative Law
No abstract provided.
Provisional Measures: How International Human Rights Law Is Changing International Law (Inspired By Gambia V. Myanmar), Christina M. Cerna
Provisional Measures: How International Human Rights Law Is Changing International Law (Inspired By Gambia V. Myanmar), Christina M. Cerna
Notre Dame Journal of International & Comparative Law
No abstract provided.
The Commission On “Unalienable Rights”: A Critique, Douglass Cassel
The Commission On “Unalienable Rights”: A Critique, Douglass Cassel
Notre Dame Journal of International & Comparative Law
No abstract provided.
Focused Accountability: A Bilateral Response To The International Proliferation Of Fentanyl Analogues, Razi Lane
Notre Dame Journal of International & Comparative Law
No abstract provided.
Equitable Remedies: Protecting "What We Have Coming To Us", Larissa Katz
Equitable Remedies: Protecting "What We Have Coming To Us", Larissa Katz
Notre Dame Law Review
This Article develops a new, doctrinally informed, theoretical account of equitable remedies in terms of our interest in “what we have coming to us”—an interest beyond private law’s commitment to protecting what is already ours, viz., our property rights and our rights to another’s performance of a contract. Through distinctive equitable remedies like specific performance, injunctions, and the remedial constructive trust, equity intervenes to prevent others from obstructing or diverting what a person has coming to her. The need for equity to recognize and to protect an interest in “what we have coming to us” arises, I argue, out of …
Algorithmic Legal Metrics, Dan L. Burk
Algorithmic Legal Metrics, Dan L. Burk
Notre Dame Law Review
Predictive algorithms are increasingly being deployed in a variety of settings to determine legal status. Algorithmic predictions have been used to determine provision of health care and social services, to allocate state resources, and to anticipate criminal behavior or activity. Further applications have been proposed to determine civil and criminal liability or to “personalize” legal default rules. Deployment of such artificial intelligence (AI) systems has properly raised questions of algorithmic bias, fairness, transparency, and due process. But little attention has been paid to the known sociological costs of using predictive algorithms to determine legal status. A large and growing social …
Antitrust Antitextualism, Daniel A. Crane
Antitrust Antitextualism, Daniel A. Crane
Notre Dame Law Review
Judges and scholars frequently describe antitrust as a common-law system predicated on open-textured statutes, but that description fails to capture a historically persistent phenomenon: judicial disregard of the plain meaning of the statutory texts and manifest purposes of Congress. This pattern of judicial nullification is not evenly distributed: when the courts have deviated from the plain meaning or congressional purpose, they have uniformly done so to limit the reach of antitrust liability or curtail the labor exemption to the benefit of industrial interests. This phenomenon cannot be explained solely or even primarily as a tug-of-war between a progressive Congress and …
Locked, Loaded, And Registered: The Feasibility And Constitutionality Of A Federal Firearms Registration System, Dylan J. Mcdonough
Locked, Loaded, And Registered: The Feasibility And Constitutionality Of A Federal Firearms Registration System, Dylan J. Mcdonough
Notre Dame Law Review
This Note is organized as follows. Part I outlines the evolving history of federal firearm legislation and its relevance to registration. Part I also presents promising state-level (or equivalent) systems of gun registration that may inform a like federal policy. Part II establishes the Supreme Court’s Second Amendment jurisprudence and its potential application to federal firearms registration. Part III then details a lower court’s application of Supreme Court precedent to existing firearm registration laws. Finally, this Note concludes by articulating how Congress can and why it must institute a federal firearms registration system.
The Market As Negotiation, Rebecca Hollander-Blumoff, Matthew T. Bodie
The Market As Negotiation, Rebecca Hollander-Blumoff, Matthew T. Bodie
Notre Dame Law Review
Our economic system counts on markets to allocate most of our societal resources. The law often treats markets as discrete entities, with a native intelligence and structure that provides clear answers to questions about prices and terms. In reality, of course, markets are much messier—they are agglomerations of negotiations by individual parties. Despite theoretical and empirical work on markets and on negotiation, legal scholars have largely overlooked the connection between the two areas in considering how markets are constructed and regulated.
This Article brings together scholarship in law, economics, sociology, and psychology to better understand the role that negotiation plays …
We Still Have Lessons To Learn From Woburn, And Flint Is A Good Place To Start, Rose Mooney
We Still Have Lessons To Learn From Woburn, And Flint Is A Good Place To Start, Rose Mooney
Notre Dame Law Review
By analyzing a previous water contamination lawsuit, this Note offers advice to litigants battling their current water crises. Specifically, this Note assesses the water contamination crisis that occurred in Woburn, Massachusetts, from the mid- to late-twentieth century and offers guidance to litigants fighting for clean water in Flint, Michigan, today. There is strength in this type of comparison: “Change in legislative actions and policy- making often result from previous environmental disasters out of which the public demands a change. In other words, we arguably learn from these disasters and effect changes to prevent them from occurring again.” The Woburn litigation …