Law Commons^™

Letter From The Editor, Ijeoma Oti

Notre Dame Journal of International & Comparative Law

No abstract provided.

Blame (Or Thank) The Administrative Procedure Act For Florida East Coast Railway, Emily S. Bremer

Journal Articles

The Supreme Court’s 1973 decision in United States v. Florida East Coast Railway is widely regarded as obviously wrong—a flaw readily overlooked because the case eliminated formal rulemaking, a category of agency action that is almost universally maligned. This essay argues that administrative law has misunderstood Florida East Coast Railway. The decision vindicates an array of forgotten but foundational principles upon which the Administrative Procedure Act (APA) was based. The Supreme Court could have delivered a less opaque, confusing opinion. But it reached the right result. Understanding why it reached the right result can help to explain a key case …

Religious Covenants, Nicole Stelle Garnett, Patrick E. Reidy, C.S.C.

Journal Articles

When religious institutions alienate property, they often include religiously motivated deed restrictions that bind future owners, sometimes in perpetuity. These “religious covenants” serve different purposes and advance different goals. Some prohibit land uses that the alienating faith community considers illicit; others seek to ensure continuity of faith commitments; still others signal public disaffiliation with the new owners and their successors. Some religious covenants are required by theological mandates, but many are not. This paper examines the phenomenon of religious covenants as both a private-law and public-law problem. We conclude that most, but not all, of them likely are enforceable, and, …

Understating The Double-Standard On The Use Of Force, Mary Ellen O'Connell

Journal Articles

In the days following the start of Russia's full-scale invasion of Ukraine on 24 February 2022, (1) international law organization leaders issued unprecedented statements of condemnation. (2) No other world event has led to so many consistent expressions from these groups respecting a violation of international law. The occasion merited the response. Russia's invasion was only the second time a member of the United Nations has attempted to conquer and eliminate another UN member since the adoption of the UN Charter in 1945. The first time was in August 1990, when Iraq invaded Kuwait. (3) At that time, the world …

"Grievously And Egregiously Wrong": American Abortion Jurisprudence, Alyson M. Cox, O. Carter Snead

Journal Articles

This paper considers American abortion jurisprudence in the light of the Supreme Court's grant of certiorari in Dobbs v. Jackson Women's Health Organization. We conclude that Casey and its precedent case of Roe are egregiously wrong, have no grounding in the Constitution, and are unjustifiable on stare decisis grounds. This article argues that the Court should take this opportunity to overturn Roe and Casey once and for all, and restore to the political branches of government the authority to enact laws and policies that offer comprehensive protections to mothers, children (born and unborn), and families. Just as both parties made …

Redefining The Rule Of Law: An Eighteenth-Century Case Study, Christian R. Burset

Journal Articles

Scholars who write about the relationship between law and empire tend to adopt one of two frameworks. The first describes imperial rule and the rule of law as fundamentally incompatible. The second praises empires—especially the British Empire—for exporting the rule of law to lands that lacked it. These competing approaches have very different political valences, but they agree in suggesting that colonial rule made no substantial contribution to today’s rule of law tradition. At best, the metropole exported a premade rule of law abroad; at worst, colonialism corrupted preexisting commitments to legality. But in neither case did imperial rule alter …

Why The Equal-Protection Case For Abortion Rights Rises Or Falls With Roe's Rationale, Sherif Girgis

Journal Articles

From the Post

For nearly 50 years, legal scholars who favor Roe v. Wade’s outcome but scorn its rationale have tried to find firmer footing for a constitutional abortion right. Roe and its follow-on case, Planned Parenthood v. Casey, claimed to derive such a right from the Due Process Clause. That proved deeply controversial, for reasons laid out in Dobbs v. Jackson Women’s Health Organization. Most prochoice critics of Roe would have relied instead on the Equal Protection Clause. Scores of essays on abortion rights have endorsed, developed, and refined the equality arguments over decades. A book of proposals about …

Misreading And Transforming Casey For Dobbs, Sherif Girgis

Journal Articles

From the Article

In Dobbs, Mississippi has asked the Supreme Court to uphold a 15-week abortion ban by overturning Roe and Casey. Some have proposed that the Court could instead uphold the ban under Casey’s undue-burden test, on the ground that a law that leaves women a fair opportunity to choose whether to abort (here, up to the 15th week) creates no undue burden. Many have noted that this proposal would flout Casey’s rejection of undue burdens until viability, which comes long after 15 weeks. This essay focuses on another problem: that the proposal would transform the meaning of the …

Covax: A Primer To International Efforts In Vaccine Distribution And Inequities, Diane Desierto

Journal Articles

I have a slightly different view from Dr. Oke in regard to his doubts regarding the utility of a waiver. To the extent that the precedent that we are looking at is whether or not there could be a waiver for countries that lack domestic manufacturing capabilities, to instead import a cheaper generic drug of the Covid vaccines that could be produced in other countries, mainly the particular hubs, such as in India and China, that is still an open question, and part of the proposal that is up before the TRIPS council involves that dimension and that aspect of …

Government Employee Speech And Forum Analysis, Randy J. Kozel

Journal Articles

This Article analyzes the institution of government employment as a nonpublic forum. Forum analysis offers a framework for bringing the doctrine of government employee speech into alignment with broader First Amendment principles. It also sharpens the theoretical contours of employee speech law by underscoring the need for vigilance against ordained orthodoxy while acknowledging the necessity of managerial discretion over institutional operations. Characterizing government employment as a nonpublic forum circumvents problematic questions like whether employee speech has provoked an adverse reaction. The proper inquiry, in the employment context as in other nonpublic forums, is whether a speech restriction is reasonable and …

Content Under Pressure, Randy J. Kozel

Journal Articles

The government generally may not punish speakers based on the content of their speech. Or so the story goes. While American courts frequently describe content neutrality as a foundation stone of expressive liberty, the results do not track the recitations. A systematic analysis of free speech jurisprudence reveals that content-based laws remain acceptable across a host of situations. The pervasiveness of content discrimination requires a reorientation of First Amendment doctrine. The core precept of expressive liberty under the U.S. Constitution is that the government may not punish speakers for their positions or perspectives. The cases reveal that so long as …

A New Report Of Entick V. Carrington (1765), Christian R. Burset, T. T. Arvind

Journal Articles

The Supreme Court has described Entick v. Carrington (1765) as “the true and ultimate expression of constitutional law” for the Founding generation. For more than 250 years, judges and commentators have read that case for guidance about the rule of law, executive authority, and the original meaning of the Fourth and Fifth Amendments. But we have been reading a flawed version. This Article publishes, for the first time, a previously unknown manuscript report of Entick v. Carrington. We explain why this version is more reliable than other reports of the case, and how this new discovery challenges prevailing assumptions about …

Regulating Charitable Crowdfunding, Lloyd Hitoshi Mayer

Journal Articles

Charitable crowdfunding is a global and rapidly growing new method for raising money to benefit charities and individuals in need. While mass fundraising has existed for more than a hundred years, crowdfunding is distinguishable from those earlier efforts because of its low cost, speed of implementation, and broad reach. Reflecting these advantages, it now accounts annually for
/="/">billions of dollars raised from tens of millions of donors through hundreds of Internet platforms such as Charidy, Facebook, GoFundMe, and GlobalGiving. Although most charitable crowdfunding campaigns raise only modest amounts, every year several efforts attract tens of millions of dollars in …

Equity, Law, And The Seventh Amendment, Samuel L. Bray

Journal Articles

The Seventh Amendment requires that the civil jury trial right be “preserved” in “Suits at common law.” Those bits of constitutional text have long set the justices on a path of historical reconstruction. For roughly two centuries, the Supreme Court has determined the scope of the civil jury trial right in federal court by reference to historic English courts. But no one is happy with the current test. In one widely used variant, it requires an inquiry into analogous 1791 actions, followed by an inquiry into the legal or equitable provenance of the remedy sought, and then a weighing that …

A Critical Problem Needing A Bolder Solution?: A Response To Atinuke O. Adediran's "Nonprofit Board Composition", Lloyd Hitoshi Mayer

Journal Articles

The governing boards of nonprofit organizations, and particularly of nonprofits that serve low income and other vulnerable populations, fail to adequately include the populations that they serve. At least this is the common understanding among people familiar with these boards. Professor Atinuke Adediran not only confirms the existence of this problem but clarifies it in four important ways. Professor Adediran also proposes concrete steps to address it; although, the clarity she has brought to the problem raises the question of whether she could have been bolder in her proposed solutions.

The clarity comes from new data, careful consideration of previous …

Preventing Emissions From Slipping Through The Cracks: How Collaboration On New Technologies To Detect Violations And Minimize Emissions Can Efficiently Enforce Existing Clean Air Act Regulations, Kathryn Caballero

Journal Articles

The link between air pollution and poor public health is well known and has been farther documented during the COVID-19 pandemic, 1 but EPA has outdated methods and rules to detect air emissions. Enforcing existing environmental regulations presents challenges because the detection and monitoring technologies identified in the regulations, or the regulation language itself, may not sufficiently identify environmental pollution, let alone complex environmental fraud. How can EPA best use new technologies and concepts to detect violations, with the intent of minimizing emissions, to improve human health and environmental outcomes during the lengthy process of drafting and publishing new regulations? …

Bon Voyage, My Friend, Amy Coney Barrett

Journal Articles

I met John in the fall of 2000, when he traveled to Washington to recruit new faculty at the annual hiring conference. Although I was not then on the teaching market, John heard that I intended to enter it in a year or two. He invited me to have coffee to discuss my plans, and so began a friendship that spanned nearly twenty years.

John wore many hats in the course of our relationship: mentor, colleague, co-author, and treasured friend.

Rather than putting his resources into himself, John put them into his family, friends, church, and work. And in each …

Alleged Violations Of The 1955 Treaty Of Amity, Economic Relations, And Consular Rights (Iran V. U.S.) (Judgment On Preliminary Objections) (I.C.J.), Diane A. Desierto

Journal Articles

On February 3, 2021, the International Court of Justice delivered its judgment on preliminary objections in Alleged Violations of the 1955 Treaty of Amity, Economic Relations, and Consular Rights (Islamic Republic of Iran v. United States of America). The judgment rejected all of the United States’ preliminary objections, declared the admissibility of Iran's Application, and held that the Court has jurisdiction “on the basis of Article XXI, paragraph 2 of the Treaty of Amity, Economic Relations, and Consular Rights of 1955.”

The Undemocratic Roots Of Agency Rulemaking, Emily S. Bremer

Journal Articles

Americans often credit—or blame—Congress for the laws and policies that govern their lives. But Congress enacts broad statutes that give federal administrative agencies the primary responsibility for making and enforcing the regulations that control American society. These administrative agencies lack the political accountability of those in public office. To address this democratic deficit, an agency seeking to adopt a new regulation must publish a notice of proposed rulemaking and provide an opportunity for the public to comment on the proposal. Heralded as “one of the greatest inventions of modern government,” the Administrative Procedure Act’s (APA) notice-and-comment rulemaking procedure is understood …

The Law And Economics Of Behavioral Regulation, Avishalom Tor

Journal Articles

This article examines the law and economics of behavioral regulation (“nudging”), which governments and organizations increasingly use to substitute for and complement traditional instruments. To advance its welfare-based assessment, Section 1 examines alternative nudging definitions and Section 2 considers competing nudges taxonomies. Section 3 describes the benefits of nudges and their regulatory appeal, while Section 4 considers their myriad costs—most notably the private costs they generate for their targets and other market participants. Section 5 then illustrates the assessment of public and private welfare nudges using cost-benefit analysis, cost-effectiveness analysis, and rationality-effects analysis.

Faith In Elections, Derek T. Muller

Journal Articles

Americans may be suffering a crisis of faith. But not necessarily a crisis of religious faith. Instead, it is a crisis of faith in elections.

This language of faith in elections—do we have faith, are we losing faith, can we restore faith—pervades our political discourse and suggests religious imagery. Examples only scratch the surface of the language of faith in elections, democracy, and the American ideal. The language is seemingly everywhere. Words, of course, take on different meanings in different contexts. But the choice to use the word faith does appear to deliberately invoke religious imagery. Words like trust, confidence, …

Can Continuing Legal Education Pass The Test? Empirical Lessons From The Medical World, Rima Sirota

Notre Dame Journal of Law, Ethics & Public Policy

No abstract provided.

Trust And Distrust Across Constitutional Law, R. George Wright

Notre Dame Journal of Law, Ethics & Public Policy

No abstract provided.

The Legal And Ethical Implications Of Public Pension Reform: Analyzing The New Constitutional Cases, T. Leigh Anenson, Jennifer K. Gershberg

Notre Dame Journal of Law, Ethics & Public Policy

No abstract provided.

Scandal And Due Process: A Canonical Response To The Mccarrick Case, Fr. John P. Kimes

Notre Dame Journal of Law, Ethics & Public Policy

No abstract provided.

Anti-Slapped In The Face: The Applicability Of Anti-Slapp Statutes In Federal Courts, Noah Brown

Notre Dame Journal of Law, Ethics & Public Policy

No abstract provided.

Social Movement Theory And The Role Of Qualified Immunity In Increasing Political Violence, Cesar M. Estrada

Notre Dame Journal of Law, Ethics & Public Policy

No abstract provided.

The Duty To Monitor: How The Mission Critical Doctrine In Marchand Informs Director Liability For Cybersecurity Breaches, Mary E. Kempf

Notre Dame Journal of Law, Ethics & Public Policy

No abstract provided.

Improving New Market Tax Credit Accessibility To Address Food Vulnerability, Zahraa Nasser

Notre Dame Journal of Law, Ethics & Public Policy

No abstract provided.

Faith In Elections, Derek T. Muller

Notre Dame Journal of Law, Ethics & Public Policy

No abstract provided.