Law Commons^™

Mmu: 04/06/20–04/12/20, Student Bar Association

Monday Morning Update

This Week @ NDLS

A Little Lagniappe (In Louisiana it means "a little something extra".)

• Another week down! At this point, it's been a month since we started on this whole quarantine-away-from-school venture (beginning with Spring Break). I feel like we're all slowly but surely getting the hang of this Zoom School of Law thing!

Questions, Comments, or Concerns?

• Have questions regarding the Law School's policies and protocols for the remainder of the semester? Got any suggestions on how to better the process?
• FAQ Submission Form

General Announcements

• University and Law School Information Pages
• IP Law Virtual Events
• From the …

Mmu: 03/30/20–04/05/20, Student Bar Association

Monday Morning Update

This Week @ NDLS

A Little Lagniappe (In Louisiana it means "a little something extra".)

• Week one of Zoom class down--WE DID IT!

Questions, Comments, or Concerns?

• Have questions regarding the Law School's policies and protocols for the remainder of the semester? Got any suggestions on how to better the process?
• FAQ Submission Form

General Announcements

• University and Law School Information Pages
• ND Law in Chicago Info Meeting
• Moot Court Q & A
• IP Law Virtual Events
• Health & Wellness Center

Stay Connected...Spiritually!

• During this difficult and uncertain time, let us answer Father Jenkins' call and continue "to strengthen one …

Hesburgh Forum 2020 "From Success To Significance", Notre Dame Club, Chicago

1975–1999: David T. Link

This year’s Hesburgh Forum theme is “From Success to Significance”. Please join our club in welcoming David Link – Rev. Dean Link will present on how a person can advance from success to significance through service to those whom society regards as the least and the last. Fr. Link reviews the many blessings in his life (especially Notre Dame) that brought him to his true calling.

Mmu: 03/23/20–03/29/20, Student Bar Association

Monday Morning Update

This Week @ NDLS

A Little Lagniappe (In Louisiana it means "a little something extra".)

• The MMU got a major face-lift in light of our new distanced learning.

Questions, Comments, or Concerns?

• Have questions regarding the Law School's policies and protocols for the remainder of the semester? Got any suggestions on how to better the process? Use the form provided by Associate Dean O'Rear.

General Announcements

• University and Law School Information Pages
• SBA Store Hours
• Health & Wellness Center

Stay Connected...Spiritually!

• I have included in this section links to livestreams of different masses and prayer services for you to tune …

Mmu: 03/02/20–03/08/20, Student Bar Association

Monday Morning Update

This Week @ NDLS

• Daily Commons Menu Specials
• Daily Mass Schedule
• Morning Prayer with CLS
• SBA Store Hours
• Info Session: Everything You Need to Know About Experiential Learning
• Recruiting Tips from Jones Day
• Faith, Police, & the Discipline Matrix: A Teach-In
• White & Case: International Law Perspectives in BigLaw
• Tabling to Support Prisoners
• BLF and CDO Hosts Kirkland & Ellis Transactional Lawyers
• Black Lives Matter: A Teach-In
• 1L Moot Court Tournament Informational Session
• Notre Dame's Private Prison Investments: A Teach-In

General Announcements

• Writing Competition: The Warren E. Burger Prize
• Congratulations NDLS Transactional Team!
• Service Opportunity for South Bend Center for …

Hearing Before The United States Senate Committee On The Judiciary “Rule By District Judge: The Challenges Of Universal Injunctions”, Samuel L. Bray

Congressional Testimony

From the introductory text of the Statement of Professor Samuel L. Bray

"There’s a script we’ve all become familiar with. A president issues an order, or an agency promulgates a rule. And then what happens? Those who oppose the order or rule will pick a friendly district court and bring a challenge. From that friendly district court, the challengers will seek an injunction that shuts down the order or rule—not just with respect to the parties, but shuts it down for everyone in the country. That kind of injunction is popularly called a “nationwide injunction,” or a “national injunction” or …

Mmu: 02/24/20–03/01/20, Student Bar Association

Monday Morning Update

This Week @ NDLS

• Daily Commons Menu Specials
• Daily Mass Schedule
• SBA Store Hours
• Morning Prayer with CLS
• Appropriation Art, Transformativeness & Fair Use Panel
• Pop UP IP Clinic
• Dreaming Domers: 21 Days to better sleep!!
• Language Exchange Coffee Break!
• Clerkship Application Process
• Networking Cocktail Program and Reception
• SCELF to host Dick Nussbaum
• Digital preservation, Archiving & Copyright Panel
• Reshaping Prosecution
• The Immigration crisis on the El Paso-Juarez Mexico border-Ruben Garcia
• Women's Networking Panel with WLF
• LGBTQ Students of Faith
• Fair Use Film Clips and Screenings
• What is a Copy?

General Announcements

• Service Opportunity for South Bend Center for the …

Mmu: 02/17/20–02/23/20, Student Bar Association

Monday Morning Update

This Week @ NDLS

• Daily Commons Menu Specials
• Daily Mass Schedule
• Morning Prayer with CLS
• Statutory Federalism and Criminal Law
• Transactional Law Team Chipotle Fundraiser
• 3L Prosecution/Public Defender Interview Skills Workshop
• First Gen Professionals Introduction to Networking
• Health Law to host Rob Gerberry
• Business Law Forum: A chat with Laura Stolpman, Associate General Counsel, Verizon
• IP Lecture Series: Melinda Henneberger
• CASA Event with Legal Voices for Children
• Professor Series: Negative Property Value
• Visit to Green Bridge Growers
• LAST DAY TO RSVP FOR THE ANNUAL NETWORKING COCKTAIL RECEPTION
• New Norms or the New Normal? A Perspective from Former White House Counsel …

Mmu: 02/10/20–02/16/20, Student Bar Association

Monday Morning Update

This Week @ NDLS

• GM Auto Workers' Strike
• Daily Commons Menu Specials
• Daily Mass Schedule
• Morning Prayer with CLS
• Renting Right
• The Landings (University Family Housing)
• Hot Cocoa Social
• Father Mike Committee Meetings
• SALDF: Volunteering at the Humane Society

General Announcements

• Service Opportunity for South Bend Center for the Homeless
• National Association of Women Lawyers Mid-Year Meeting in Chicago
• ITA Jurors Needed
• SBA Store Hours
• Student Job Opportunity w/ND Listens
• Legal Writing Center
• Volunteer Opportunity at Green Bridge Growers
• IDEA Center Student Connections
• Health & Wellness Center
• Notice to student visitors to Sinai Synagogue
• Advertise Law School Events on the …

Mmu: 02/03/20–02/09/20, Student Bar Association

Monday Morning Update

This Week @ NDLS

• Daily Commons Menu Specials
• Daily Mass Schedule
• Morning Prayer with CLS
• 7th Circuit Court of Appeals Federal Clerkship Discussion Panel
• Prosecution/Public Defender Interview Skills Workshop
• Fed Society and Constitutional Studies Present Data-Driven Originalism: The Rise of Corpus Linguistics
• Public Interest Interview Skills Workshop
• State of the Law School Address
• Responsible Prosecutors and the Role of a Judge
• Journal of Legislation Symposium - "Hot Topics in Immigration Law"

General Announcements

• Student Job Opportunity w/ND Listens!
• SBA Store Hours
• Legal Writing Center
• Volunteer Opportunity at Green Bridge Growers
• IDEA Center Student Connections
• Health & Wellness Center
• Notice to …

Mmu: 01/27/20–02/02/20, Student Bar Association

Monday Morning Update

This Week @ NDLS

• Daily Commons Menu Specials
• Daily Mass Schedule
• Morning Prayer with CLS
• Interview Skills Workshop
• Married & Engaged Law Student Organizational Meeting
• Public Interest Law Forum General Meeting
• Intellectual Property Law Society Introductory Meeting for the Semester
• London Law Program Information Sessions
• London Law Q&A Drop-in Session with Professor Addo
• Your Non-law Firm Job Search
• HLSA Spring Semester Meeting
• From Russia With Love: On Foreign Interference in Elections
• LGBTQ Students of Faith

General Announcements

• Student Job Opportunity w/ND Listens!
• SBA Store Hours
• Legal Writing Center
• Volunteer Opportunity at Green Bridge Growers
• IDEA Center Student Connections
• Health & …

Mmu: 01/20/20–01/26/20, Student Bar Association

Monday Morning Update

This Week @ NDLS

• Daily Commons Menu Specials
• Daily Mass Schedule
• Morning Prayer with CLS
• SBA Store Hours
• Changemakers Week
• Campus Launch: With Voice True, the Klau Center Archive on Race
• Research Assistant Information Session
• WLF Lunch: Intersectionality in the Midwest Suffrage Movement
• 2nd Amendment Rights for People of Color: A Conversation with Professor Smith
• Thomas Jefferson, Race, Slavery, and the Problem of American Nationhood
• How Women Have Shaped the Judiciary Panel Discussion
• How to Pursue a Public Interest Career with Equal Justice Works

General Announcements

• Student Job Opportunity w/ND Listens
• SBA Store Hours
• Health & Wellness Center
• Legal Writing …

The Killing Of Soleimani And International Law, Mary Ellen O'Connell

NDLS in the News

On 3 January, missiles launched from a United States Reaper drone struck two vehicles leaving Baghdad’s international airport. At least seven people died in the attack, including the commander of Iran’s Quds force, General Qassem Soleimani. On 5 January, Iranian Major General Hossein Dehghan, reported to be the military adviser to Iran’s Supreme Leader, gave an exclusive interview to CNN and said Iran “would retaliate directly against US ‘military sites.’”

Reckoning With Adjudication's Exceptionalism Norm, Emily S. Bremer

Journal Articles

Unlike rulemaking and judicial review, administrative adjudication is governed by a norm of exceptionalism. Agencies rarely adjudicate according to the Administrative Procedure Act’s formal adjudication provisions, and the statute has little role in defining informal adjudication or specifying its minimum procedural requirements. Due process has almost nothing to say about the matter.

The result is that there are few uniform, cross-cutting procedural requirements in adjudication, and most hearings are conducted using procedures tailored for individual agencies or programs. This Article explores the benefits and costs of adjudication’s exceptionalism norm, an analysis that implicates the familiar tension between uniformity and specialization …

Conscience And Justice In Equity: Comments On Equity: Conscience Goes To Market, Paul B. Miller

Journal Articles

This short essay introduces and engages several philosophical questions raised by Irit Samet’s Equity: Conscience Goes to Market. Amongst other things, it addresses questions going to: the proper scope of equity; the relationship between equity’s remedial and supplemental functions; whether, and if so, to what extent equity promotes compliance with moral obligations; what, if any, moral aims animate equitable intervention; and whether, and if so, how, equity is distinctively concerned with matters of conscience and “particular” justice. All the while, I express appreciation for Samet’s project while raising some doubts about her views on how law and equity divide labor …

The Professor As Institutional Entrepreneur, Roger P. Alford

Journal Articles

Law professors are all about ideas, and the creation of an institute, clinic, or center within a law school is the instantiation of an idea. Ideas embodied in law school institutions become crystallized in the fabric of a school, changing its culture, internalizing its values, and reflecting its priorities. Robert Cochran has helped to establish multiple institutes, centers, and clinics at Pepperdine Caruso Law School, and in so doing he has become the law school's great serial entrepreneur. The institutes Cochran helped to establish have become laboratories to give expression to his ideas about the relationship between faith, ethics, and …

Attribution And Other Conditions Of Lawful Countermeasures To Cyber Misconduct, Mary Ellen O'Connell

Journal Articles

State cyber misconduct is on the rise, and it can be difficult to differentiate between malicious governmental cyber conduct and active cyber defense. Though some argue that cyberspace is a law-free zone, offensive cyberattacks are almost always unlawful regardless of their purpose. This Article contends that international law can provide for legal boundaries in cyberspace and analogizes cyber misconduct to government actions such as espionage. So long as conditions provided by international law (such as notice, necessity, and proportionality) are met, countermeasures to malicious cyber operations are generally lawful. Cases of urgency may be an exception to this general rule …

The Invisible Prison: Pathways And Prevention, Margaret F. Brinig, Marsha Garrison

Journal Articles

In this paper, we propose a new strategy for curbing crime and delinquency and demonstrate the inadequacy of current reform efforts. Our analysis relies on our own, original research involving a large, multi-generational sample of unmarried fathers from a rust-belt region of the United States as well as the conclusions of earlier researchers.

Our own research data are unusual in that they are holistic and multigenerational: The Court-based record system we utilized for data collection provided detailed information on child maltreatment, juvenile status and delinquency charges, child support, parenting time, orders of protection, and residential mobility for focal children (the …

The Judicial Reforms Of 1937, Barry Cushman

Journal Articles

The literature on reform of the federal courts in 1937 understandably focuses on the history and consequences of President Franklin D. Roosevelt’s ill-fated proposal to increase the membership of the Supreme Court. A series of decisions declaring various components of the New Deal unconstitutional had persuaded Roosevelt and some of his advisors that the best way out of the impasse was to enlarge the number of justiceships and to appoint to the new positions jurists who would be “dependable” supporters of the Administration’s program. Yet Roosevelt and congressional Democrats also were deeply troubled by what they perceived as judicial obstruction …

The New Nuclear? Small Modular Reactors And The Future Of Nuclear Power, Bruce Huber

Journal Articles

Nuclear power has struggled against severe economic headwinds, but some believe that small modular reactors (SMRs) may save the industry from its current woes. This article begins by explaining the regulatory and economic structure of the electricity sector in the United States. It then describes the current plight of the nuclear power industry before examining SMRs in particular—how they differ from conventional nuclear reactors, what regulatory issues they will confront, and what factors will most directly shape their long-term potential.

Certification Comes Of Age: Reflections On The Past, Present And Future Of Cooperative Judicial Federalism, Kenneth F. Ripple

Journal Articles

In 1995, the American Judicature Society (AJS) undertook a comprehensive survey of certification. This Article uses the AJS’s survey as a starting point to examine the development of certification over the past twenty-five years. Were the fears of its critics well founded, or have the federal and state judiciaries adapted to mitigate the shortcomings of certification? Has certification been a useful tool in allowing for development of state law by the state judiciary, or has it been an imposition on the judiciary of a coequal sovereign?

Beyond these questions, this Article also will look at how certification has expanded beyond …

Damages For Privileged Harms, Stephen Yelderman

Journal Articles

The law often permits substantial harms without liability. Once liability is triggered, compensatory damages require a defendant to pay for the harm caused by his wrongful conduct. But there is significant theoretical and doctrinal ambiguity in how compensatory damages should account for the harm that the defendant could have caused without incurring liability in the first place. These harms are “privileged,” in the sense that the defendant would have been free to impose them in a counterfactual universe in which he complied with the substantive law. Having transgressed that law, he is now responsible for damages, but the question is …

Neoclassical Administrative Law, Jeffrey Pojanowski

Journal Articles

This Article introduces an approach to administrative law that reconciles a more formalist, classical understanding of law and its supremacy with the contemporary administrative state. Courts adopting this approach, which I call “neoclassical administrative law,” are skeptical of judicial deference on questions of law, tend to give more leeway to agencies on questions of policy, and attend more closely to statutes governing administrative procedure than contemporary doctrine does. As a result, neoclassical administrative law finds a place for both legislative supremacy and the rule of law within the administrative state, without subordinating either of those central values to the other. …

An Economic Approach To Religious Exemptions, Stephanie H. Barclay

Journal Articles

Externalities caused by religious exemptions have been getting the spotlight again in light a case the U.S. Supreme Court will hear this term: Fulton v. City of Philadelphia. Some argue that religious individuals should be required to internalize the costs they impose on third parties and thus should be denied the right to practice that harmful behavior. These new progressive theories about harm trade on rhetoric and normative intuitions regarding externalities and costs. But curiously, these theories also largely ignore an influential theoretical movement that has studied externalities and costs for the last fifty years: law and economics.

This Article …

Untangling Entanglement, Stephanie H. Barclay

Journal Articles

The Court has increasingly signaled its interest in taking a more historical approach to the Establishment Clause. And in its recent American Legion decision, the Supreme Court strongly suggested that the three-prong Lemon test is essentially dead letter. Such a result would make sense for the first two prongs of the Lemon test about secular purpose and the effects. Many scholars have observed that these aspects of the prong are judicial creations far afield of the Establishment Clause history. But what of the entanglement prong of the test? If we rejected all applications of this prong of the analysis, would …

Forgotten Borrowers: Protecting Private Student Loan Borrowers Through State Law, Judith Fox

Journal Articles

Private student loan borrowers arguably have the fewest protections of any users of credit in the United States. In a scarcely debated amendment to federal bankruptcy law, in 2005 private student lenders gained the same protections against discharge previously afforded to federal student lenders. Yet, private student loan borrowers received none of the rights available to federal student loan borrowers. These include income-driven repayment, relief from repayment on disability, loan discharge for fraud or closed schools, and public service loan forgiveness. Private student loan borrowers thus have neither the bankruptcy protections afforded to non-student loan debtors nor the repayment and …

Avoiding Judicial Discipline, Veronica Root Martinez

Journal Articles

Over the past several years, several high-profile complaints have been levied against Article III judges alleging improper conduct. Many of these complaints, however, were dismissed without investigation after the judge in question removed themselves from the jurisdiction of the circuit’s judicial council—oftentimes through retirement and once through elevation to the Supreme Court. When judges—the literal arbiters of justice within American society—are able to elude oversight of their own potential misconduct, it puts the legitimacy of the judiciary and rule of law in jeopardy.

This Essay argues that it is imperative that mechanisms are adopted that will ensure investigations into judicial …

Against Fiduciary Constitutionalism, Samuel L. Bray, Paul Miller

Journal Articles

A growing body of scholarship draws connections between fiduciary law and the Constitution. In much of this literature, the Constitution is described as a fiduciary instrument that establishes fiduciary duties, not least for the President of the United States. This Article examines and critiques the claims of fiduciary constitutionalism. Although a range of arguments are made in this literature, there are common failings. Some of these involve a literalistic misreading of the works of leading political philosophers (e.g., Plato and Locke). Other failings involve fiduciary law—mistakes about how to identify fiduciary relationships, about the content and enforcement of fiduciary duties, …

The Comparative Legal Landscape Of Educational Pluralism, Nicole Stelle Garnett

Journal Articles

In the United States, debates about private and faith-based education tend to focus on questions about government funding: which kinds of schools should the government fund (and at what levels)? Should, for example, students be able to use public funds to attend privately operated schools? Faith-based schools? If so, what policy mechanisms should be used to fund private schools—vouchers, tax credits, direct transfer payments? How much funding should these schools receive? The same amount as public schools or less? As a historical matter, the focus on funding in the United States makes sense because only public (that is, government-operated) elementary …

Promoting International Procedural Norms In Competition Law Enforcement, Roger P. Alford

Journal Articles

It is a pleasure to participate in the 2019 Kansas Law Review Symposium, "Antitrust Law and Policy in the 21st Century." Antitrust is once again a hot topic and discussion about how to effectively enforce the laws in a digital age is generating widespread attention. My focus will be on the topic of promoting fundamental due process in competition law investigation and enforcement. With competition authorities around the globe becoming increasingly more active, it is one of the most important topics on the antitrust agenda. And this year, we witnessed a watershed moment with the adoption of a new framework …