Law Commons^™

Eliminating The Fugitive Disentitlement Doctrine In Immigration Matters, Tania N. Valdez

Notre Dame Law Review

Federal courts of appeals have declared that they may dismiss immigration appeals filed by noncitizens who are deemed “fugitives.” The fugitive disentitlement doctrine emerged in the criminal context with respect to defendants who had escaped from physical custody. Although the doctrine originated out of concerns that court orders could not be enforced against criminal fugitives, the doctrine has since crept into civil contexts, including immigration. But rather than invoking the doctrine for its originally intended purpose of ensuring that court orders could be enforced, courts now primarily invoke it for the purposes of punishment, deterrence, and protecting the dignity of …

Stare Decisis And Intersystemic Adjudication, Nina Varsava

Notre Dame Law Review

Interpreting and following precedent is a complicated business. Various reasonable but conflicting methods of ascertaining the legal effect of precedent exist. Differences between practices of precedent or doctrines of stare decisis are particularly salient between legal systems or jurisdictions. For example, a state’s judges might embrace different stare decisis norms than federal judges. This situation presents a major quandary for intersystemic jurisprudence that has been largely overlooked in the scholarly literature.

Are law-applying judges in the intersystemic context bound by the law-supplying jurisdiction’s methods of interpreting precedent? For example, when the Seventh Circuit Court of Appeals adjudicates a question of …

The Role Of Emotion In Constitutional Theory, J. Joel Alicea

Notre Dame Law Review

Although the role of emotion in law has become a major field of scholarship, there has been very little attention paid to the role of emotion in constitutional theory. This Article seeks to fill that gap by providing an integrated account of the role of emotion within the individual, how emotion affects constitutional culture, and how constitutional culture, properly understood, should affect our evaluation of major constitutional theories.

The Article begins by reconstructing one of the most important and influential accounts of emotion in the philosophical literature: that of Thomas Aquinas. Because Aquinas’s description of the nature of emotion accords …

Contract's Covert Meddlers, Sarah Winsberg

Notre Dame Law Review

Scholars of contract law typically examine contracts as bargains between two parties. This approach elides an additional, key function of many contracts: to shape existing relationships to the satisfaction of a third party, often one more economically powerful than either of the two bargainers. Third-party litigants, especially creditors, have historically advocated for their own interests and interpretive paradigms so strongly that they have sometimes gained priority over the actual intentions of the two bargainers.

This Article recovers the story of how a group of frequent-flier third parties—mainly creditors of small businesses—shifted the rules of contracts between partners in early America. …

Freedom Seekers: The Transgressive Constitutionalism Of Fugitives From Slavery, Rebecca E. Zietlow

Notre Dame Law Review

In the years leading up to the Civil War, fugitives from slavery put their lives on the line to improve their own status and that of their families in their quest for freedom. Fugitives from slavery, or “freedom seekers,” engaged in civil disobedience, resisting laws that they believed to be unjust and inhumane. In the North, free black people and their white allies supported the freedom seekers by engaging in civil disobedience of their own. The transgressive actions of freedom seekers sparked constitutional controversy during the antebellum era over issues of interstate comity, federalism, citizenship rights, and fundamental human rights. …

Brown, History, And The Fourteenth Amendment, Christopher W. Schmidt

Notre Dame Law Review

Legal scholars and historians in recent years have sought to elevate Reconstruction to the stature of a “second Founding,” according it the same careful inquiry and legitimating function as the first. Their work marks the latest iteration of a decades-long campaign to displace the far more dismissive attitude toward Reconstruction that permeated historical scholarship and legal opinions in the first half of the twentieth century. In this Article, I present the flurry of engagement with the history of the Fourteenth Amendment during the litigation of Brown v. Board of Education (1954) as a key transition point in how historians and …

Up In Smoke: Why Regulating Social Media Like Big Tobacco Won’T Work (Yet!), Ian Mckay

Notre Dame Law Review

Lawmakers, pundits, and tech executives’ assertion that social media should be regulated like tobacco in order to protect American teenagers is oversimplistic. While the comparison makes for a good sound bite for the press, the argument disregards the inherent differences between regulating a physical product that has no constitutional protection and a virtual product that can implicate both users’ and social media companies’ First Amendment rights. This paper will identify and analyze some of the main pillars of the tobacco regulatory scheme and apply them to social media products. In Part I, I will define social media and provide a …

A Simple Model Of Torts And Moral Wrongs, Steven Schaus

Notre Dame Law Review

According to the “standard model” of torts and moral wrongs—the model implicit in leading moral theories of tort law—tort law imposes genuine duties that are distinct from, and only roughly coincide with, our preexisting moral duties. A “tort,” on this model, is a distinctive kind of wrong, the breach of a tort-generated duty. In this Article, I suggest that moral theories of tort law start with a simpler story—one that dispenses with a distinct domain of tort-generated duties. According to what I call the “simple model” of torts and moral wrongs, tort law aims to recognize and respond directly to …

Brief Of Amici Curiae Arbitration Scholars And Practitioners In Support Of Petitioners, Sarah A. Dowd, Eric B. Fisher, Travis A. Gonyou, Diane Desierto

Court Briefs

No. 21-1244
Beijing Shougang Mining Investment Company, Ltd. v. Mongolia

On Petition for Writ of Certiorari to the United States Court of Appeals for the Second Circuit

From the Summary of Argument

Parties to international arbitration and arbitral tribunals themselves value predictability and dependability. This is especially so for threshold questions concerning the authority of an arbitral tribunal to decide disputes over its own jurisdiction. Among international arbitration scholars and practitioners this threshold question is often known by the German term kompetenz-kompetenz, referring to the issue of competence to determine the competence of an arbitral panel to decide a dispute. …

Mmu: 04/25/22–05/01/22, Student Bar Association

Monday Morning Update

This Week @ NDLS

General Announcements

Stoic Start to the Week

Lilla in London

Sport Report by Davis Lovvorn

1L of the Week: Caroline Buthe

2Ls Taking Ls: Will Warnisher

Ask a 3L: Katie Pallesen

Ndls Communicator: Week Of 04.25.22, Notre Dame Law School

NDLS Communicator

The Latest News

• ND Law's First Generation Professionals group creates alumni mentor program
• International faculty visit ND Law for 2022 spring semester
• Julian Velasco quoted in Bloomberg Law
• Mary Ellen O’Connell was quoted by Catholic News Service
• Media coverage of Kennedy v. Bremerton RLI case
• Sam Bray writes for Volokh Conspiracy
• Diane Desierto to give Gillian White Lecture at Manchester International Law Centre

Events

Tuesday, April 26

• Global Lawyering: a U.S. Perspective on SPACs and Securities Regulation, 12:30 p.m., via Zoom here. Patrick Corrigan will speak on his recent research concerning how laws and legal institutions shape capital markets and …

Mmu: 04/18/22–04/24/22, Student Bar Association

Monday Morning Update

This Week @ NDLS

General Announcements

Stoic Start to the Week

Lilla in London

Sport Report by Davis Lovvorn

1L of the Week: Joe Allegretti

2Ls Taking Ls: Morgan Cleary

Ask a 3L: Samantha Contreras

Ndls Communicator: Week Of 04.18.22, Notre Dame Law School

NDLS Communicator

The Latest News

• 20 faith leaders that are challenging the conservative movement to change
• ND London Law Professor Philippa Webb awarded top prize in international law publishing
• Visiting Professor Francisco Urbina talks about teaching at ND Law, visiting fellowship at Kellogg Institute
• Bur Oak Foundation seminar series dedicated to Carter Snead's book
• Relevant Reads: The Journey to Inclusion
• Indiana law students learn etiquette do’s and don’ts

Student News

• Nicolás Buitrago Rey is a Colombian human rights lawyer interested in LGBTIQ+ rights. He is pursuing his LL.M. at Notre Dame Law School.

Events

Tuesday, April 19

• Faculty Colloquium, Mark Ramseyer, Harvard, …

Ndls Communicator: Week Of 04.11.22, Notre Dame Law School

NDLS Communicator

The Latest News

• Lloyd Mayer in the news
• Mary Ellen O’Connell was quoted by CNBC
• Diane Desierto speaks at Santa Clara School of Law Symposium
• Brandy Ellis was selected to attend the American Association of Law Librarians (AALL) Leadership Academy in Chicago.

Student News

• ND Law’s 2022 Bank of America Fellows to focus on exoneration and wrongful conviction work
• ND Law’s 2022 Shaffer Fellows to address mental illness in Illinois prisons, mortgage foreclosures in Chicago
• Ross D’Entremont, Reid Edwards, and Vincent Gangemi won first place in the Touro Law Center National Moot Court Competition in Law & Religion last week …

Mmu: 04/04/22–04/10/22, Student Bar Association

Monday Morning Update

This Week @ NDLS

General Announcements

Stoic Start to the Week

Lilla in London

Sport Report by Davis Lovvorn

1L of the Week: Lizzy Forzley

2Ls Taking Ls: Maria Rossi

Ask a 3L: Justin Ewing

Ndls Communicator: Week Of 04.04.22, Notre Dame Law School

NDLS Communicator

Commencement Update

• Commencement for the Class of 2022
• Commencement for the Class of 2020

The Latest News

• Lloyd Hitoshi Mayer quoted in New York Times
• Rick Garnett writes for Public Discourse
• Veronica Root Martinez quoted in Star Tribune op-ed
• Exoneration Justice Clinic hires new investigator

Student News

• ND Law students learn at home and abroad during 2022 spring break
• Winner, semifinalists announced in ND Law’s first International and Comparative Law Writing Competition
• Grace Oladipo, a Fulbright Irish awardee, is completing a LL.M. in International Human Rights Law.

Alumni News

• John F. Crowley to deliver the commencement address to 2020 Notre …

Revoking Wills, David Horton

Notre Dame Law Review

No issue in inheritance law has sparked as much debate as the requirements for making a valid will. For centuries, Anglo-American courts have insisted that decedents obey rigid formalities, such as signing or acknowledging their wills before two witnesses. These rituals preserve proof of the testator’s wishes, reinforce the gravity of estate planning, prevent fraud and duress, and distinguish wills from other instruments. But they also have a dark side. In scores of cases, judges have cited minor errors during the execution process to invalidate documents that a decedent intended to be effective. Accordingly, generations of scholars have critiqued will-creation …

A Solution For The Third-Party Doctrine In A Time Of Data Sharing, Contact Tracing, And Mass Surveillance, Tonja Jacobi, Dustin Stonecipher

Notre Dame Law Review

Today, information is shared almost constantly. People share their DNA to track their ancestry or for individualized health information; they instruct Alexa to purchase products or provide directions; and, now more than ever, they use videoconferencing technology in their homes. According to the third-party doctrine, the government can access all such information without a warrant or without infringing on Fourth Amendment privacy protections. This exposure of vast amounts of highly personal data to government intrusion is permissible because the Supreme Court has interpreted the third-party doctrine as a per se rule. However, that interpretation rests on an improper understanding of …

Whose Secularism? Which Laïcité? Negotiating Transnational And National Constitutionalism In Kosovo, Thomas J. Hellenbrand

Notre Dame Law Review

This Note will proceed as follows: Part I will set the stage and briefly outline the history of Kosovo and its current political status. Part II will then introduce the Kosovo Constitution and the process by which international agreements (such as the European Convention of Human Rights) were embedded in the text and made binding legal authority. It will show that, although the international agreements are binding, the Kosovo Constitution does not make international case law obligatory. Part III will then address different foundational documents drafted in anticipation of Kosovo’s statehood and how judicial and administrative institutions should apply them …

The Commodification Of Public Land Records, Reid K. Weisbord, Stewart E. Sterk

Notre Dame Law Review

The United States deed recording system alters the “first in time, first in right” doctrine to enable good faith purchasers to record their deeds to protect themselves against prior unrecorded conveyances and to provide constructive notice of their interests to potential subsequent purchasers. Constructive notice, however, works only when land records are available for public inspection, a practice that had long proved uncontroversial. For centuries, deed archives were almost exclusively patronized by land-transacting parties because the difficulty and cost of title examination deterred nearly everyone else.

The modern information economy, however, propelled this staid corner of property law into a …

Federal Courts And Takings Litigation, Ann Woolhandler, Julia D. Mahoney

Notre Dame Law Review

This Article first gives an overview of the role of the federal courts in takings claims over time, with a view to providing a more complete picture than that supplied by focusing either on the Lochner/New Deal-era dichotomy or on the advent of the 1871 Civil Rights Act (current § 1983). It traces the fairly robust role of the federal courts in protecting property under a nonconfiscation norm both before and during the Lochner era. It also points out that the legislative history of the 1871 Civil Rights Act does not support a firm conclusion that Congress intended takings …

Notre Dame Lawyers Connect: April 2022, Notre Dame Law School

Notre Dame Lawyers Connect

ND Law's First Generation Professionals group creates alumni mentor program

Dean Cole named "new reformer" by Deseret News

Black Law Students Association hosts Alumni Spring Weekend

Alumni Spotlights

• John Crowley '92 J.D. to deliver 2020 Commencement Address
• Judge Ann Claire Williams '75 J.D. testifies at Congress for SCOTUS hearing

Events

• 2022 Notre Dame Day set for April 24-25
• April 26: Global Lawyering: A U.S. Perspective on SPACs and Securities Regulation
• April 26: CLE: From Inner Critic to Inner Coach: Making an Ally of Our Self-Talk
• ICYMI: "All God's Children" discussion

Alumni Notes

• Kathleen Kerrigan
• Angie García Atehortúa
• Jacob Kraus
• Kelly …

To Stay Or Not To Stay: Competing Motions In The Shadow Of Multidistrict Litigation, Emily M. Dowling

Notre Dame Law Review

This Note proceeds in three parts. Part I provides a basic overview of the inherent power, with an emphasis on the interaction between inherent power and jurisdiction. In Part II, it reintroduces the Opioid outcome and describes the mechanisms producing it by summarizing district courts’ varied approaches to resolving competing motions to remand or stay. In Part III, it identifies the flaws of those approaches and proposes an alternative solution, applying jurisdictional resequencing doctrine to the ordering inquiry and concluding that the remand must go first.

Establishment’S Political Priority To Free Exercise, Marc O. Degirolami

Notre Dame Law Review

Americans are beset by disagreement about the First Amendment. Progressive scholars are attacking the venerable liberal view that First Amendment rights must not be constricted to secure communal, political benefits. To prioritize free speech rights, they say, reflects an unjust inflation of individual interest over our common political commitments. These disagreements afflict the Religion Clauses as well. Critics claim that religious exemption has become more important than the values of disestablishment that define the polity. Free exercise exemption, they argue, has subordinated establishment.

This Article contests these views. The fundamental rules and norms constituting the political regime—what the Article calls …

Groups And Rights In Institutional Reform Litigation, David Marcus

Notre Dame Law Review

Lawsuits pursue institutional reform when plaintiffs ask courts to issue broad, systemic remedies to improve the performance of malfunctioning government programs. Once thought in decline, this litigation persists. Plaintiffs continue to seek judicial protection from dysfunctional prisons, immigration enforcement regimes, foster care systems, and other institutions. But an important aspect of the substantive law that institutional reform litigation involves has gone overlooked. This substantive law often vests rights in groups. An institutional reform lawsuit does not always—or even often—bundle large numbers of individual rights violations. Rather, a group of incarcerated people or children in foster care sues to vindicate a …

State Rejection Of Federal Law, Thomas B. Bennett

Notre Dame Law Review

Sometimes the United States Supreme Court speaks, and states do not follow. For example, in 2003, the Arizona Supreme Court agreed to “reject” a decision of the U.S. Supreme Court, because no “sound reasons justif[ied] following” it. Similarly, in 2006, Michigan voters approved a ballot initiative that, according to the legislature that drafted it, sought “at the very least[] to ‘freeze’ the state’s . . . law to prevent” state courts from following a ruling of the U.S. Supreme Court. Surprising though this language may be, there is nothing nefarious about these cases. Cooper v. Aaron this is not. Unlike …

Ndls Communicator: Week Of 03.28.22, Notre Dame Law School

NDLS Communicator

The Latest News

• The bonds between Notre Dame and Ukraine
• Veronica Root Martinez to publish in Harvard Law Review
• ND Law’s Exoneration Justice Clinic joins Innocence Network
• John Meiser quoted by Catholic News Service
• Last week the Religious Liberty Initiative hosted University of Texas Professor Steven Collis for a discussion about his new book, "The Immortals."
• Judge Ann Claire Williams '76 J.D. testified on behalf of Judge Ketanji Brown Jackson during her Supreme Court confirmation hearing.

Student News

• The Military and Veteran Law Society and MBA Veterans completed a service event together on March 20 at the Robert L. Miller …

2022 Blsa Alumni Spring Weekend: Fireside Chat With Jackie Wilson Ii, '07 J.D., Black Law Students Association, Notre Dame Law School

BLSA Videos

On March 25, 2022, the Black Law Students Association hosted a fireside chat featuring Jackie Wilson II, '07 J.D. Chief Diversity, Equity, and Inclusion Officer for the Brooklyn Nets, who was interviewed by BLSA President Monica Bell and Fitness Connection USA General Counsel Mauri Miller ’13 J.D. This event was part of the larger 2022 BLSA Alumni Spring Weekend celebration.

Introductory remarks by Max Gaston, Director of Diversity, Equity, and Inclusion at the Notre Dame Law School.

Location: The Patrick F. McCartan Courtroom, Eck Hall of Law, University of Notre Dame

Mmu: 03/21/22–03/27/22, Student Bar Association

Monday Morning Update

This Week @ NDLS

General Announcements

Stoic Start to the Week

Lilla in London

Sport Report by Davis Lovvorn

1L of the Week: Samantha Downey

2Ls Taking Ls: Anthony Gullo

Ask a 3L: Vincent Gangemi

Ndls Communicator: Week Of 03.21.22, Notre Dame Law School

NDLS Communicator

The Latest News

• Mary Ellen O'Connell on Russia's war against Ukraine
• Avishalom Tor speaks at Judicial Conference on the Behavior Analysis of Law
• Lloyd Mayer writes about donations going to Ukraine
• Diane Desierto publishes in Vienna International Constitutional Law Journal
• Jimmy Gurulé quoted in New York Post
• EJC becomes member of Innocence Network

Student News

• ND Law hosts second annual Financial Wellness Week with free financial coaching, education, and resources for students

Events

• Monday, March 21: Judge Ketanji Brown Jackson confirmation hearing watch party, 11 a.m.-2 p.m.
• Big Law Panel with ND Law professors, 12:30 p.m., 1130 Eck Hall of …