Law Commons^™

Empirical Analysis Of National Court Enforcement Of International Commercial Arbitration Awards, Roger P. Alford, Crina Baltag, Matthew E.K. Hall, Monique Sasson

Journal Articles

The empirical research in this article relies on a data set including all national court decisions on recognition, enforcement and setting aside (vacatur) of international commercial arbitration awards available in the Kluwer database that were rendered from 1 January 2010 to 1 June 2020. Within the time parameters of this study, there were 504 vacatur actions and 553 offensive recognition and enforcement actions. Those decisions were rendered by national courts in 74 different jurisdictions.

The research coded every argument raised by defendants challenging the recognition and enforcement of awards based on grounds set forth in Article V of the United …

Coming Full Circle On Human Rights In The Global Economy: International Economic Law Tools To Realize The Right To Development, Diane A. Desierto

Journal Articles

From the Article

This article argues that the discipline and profession of international economic law has undergone a significant architectural change to focus on human rights law as both the premise and promise of the international economic system. Contrary to prevailing currents that focus on the irrelevance of the global economic system to realize human rights, this article argues that international economic law tools have already been converging within the last decade to authentically realize the Right to Development of individuals, groups, and populations. The Draft Convention on the Right to Development defines the right as the enjoyment, participation, and …

Treaties In The Philippine Constitutional System, Diane A. Desierto

Journal Articles

From the Article Abstract

International law has always had a dual significance to the Philippine constitutional system. On the one hand, the frequent articulation of international law principles within modern Philippine constitutional norms, statutes, and administrative rules demonstrate an outward-looking normative ethos – one I have described in other scholarship to be consistent with the 1987 Philippine Constitution’s ‘universalist history’. On the other hand, the considerable volume of Philippine jurisprudence applying international law norms to date overwhelmingly illustrate how Philippine litigants have strategically deployed international law (most especially international human rights law) over the years, as an acceptable external legal …

On Disgorgement And Punitive Damages In Trust Law, Daniel B. Kelly

Journal Articles

Private and charitable trusts hold trillions of dollars in assets. Trustees manage, invest, and distribute these assets, subject to fiduciary duties, including the duty of loyalty and prudence. But the remedies for fiduciary breach, and their justifications, are convoluted. The conventional view, especially in law and economics, is to characterize most fiduciary relationships, including trusts, as contractual and most fiduciary duties as implicit contract terms. One might suppose, then, that the optimal remedy for fiduciary breach would be the same as the usual remedy for contractual breach: damages. But the traditional equitable remedies in fiduciary law, and modern remedies in …

Fragility, Not Superiority? Assessing The Fairness Of Special Religious Protections, Sherif Girgis

Journal Articles

Is it fair to grant exemptions from neutral laws to protect religion but not other deep commitments and pursuits, like secular conscience or care-giving bonds? The 30-year scholarly debate on this question now has legal import, as the Supreme Court stands poised to reverse precedent and restore free exercise exemptions from neutral laws. Whether it should, under stare decisis, turns partly on moral considerations like the fairness issue. And the debate is worth revisiting. Almost everyone has assumed that special religious protections are fair if and only if religion matters more than other interests. Yet protections for religion might be …

Defining “Substantial Burdens” On Religion And Other Liberties, Sherif Girgis

Journal Articles

The U.S. Supreme Court seems poised to restore free exercise exemptions from neutral laws that burden religion. But pivotal Justices have asked how to narrow religious exemptions. This Article proposes answers with wide-ranging implications for the future—and limits—of free exercise, and for the doctrine on other liberties.

To date, courts applying exemptions from “substantial burdens” on religion have tended to narrow protections to the detriment of religious minorities. But many fear that expanding exemptions would over-protect Christians in culture-war cases.

Striking a balance will require a sound definition of “substantial burdens.” But the current, strongly pro-religion Court will not impose …

Book Review, Mary Ellen O'Connell

Journal Articles

Book review of Intervention in Civil Wars: Effectiveness, Legitimacy, and Human Rights by Chiara Redaelli. Oxford: Hart Publishing, 2021.

Ndls Communicator: Week Of 12.20.21, Notre Dame Law School

NDLS Communicator

The Latest News

• Three ND Law alumni join Religious Liberty Initiative team
• Kresge Law Library receives rare, antique English legal documents from alumnus
• Roger Alford testified at the Senate Subcommittee
• Nicole Garnett on Religious Freedom Matters podcast
• Lloyd Mayer writes for The Conversation.com
• Diane Desierto to serve on EJILTalk board

Student News

• Jorge Barrera Rojas named fellow of the Stanford Constitutional Law Center

Events

• Thursday, December 23, 2021 through Monday, January 3, 2022 Christmas Holiday
• Tuesday, January 4: Campus reopens after Christmas holiday
• Wednesday, January 5 and Thursday, January 6, 2022: Empirical, Behavioral, and Experimental Analyses of Law, Tel Aviv …

Hearing Before The United States Senate Committee On The Judiciary, Subcommittee On Competition Policy, Antitrust, And Consumer Rights: The Impact Of Consolidation And Monopoly Power On American Innovation, Roger P. Alford

Congressional Testimony

Originally published by the United States Senate Committee on the Judiciary

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Copy of Testimony

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Ndls Communicator: Week Of 12.13.21, Notre Dame Law School

NDLS Communicator

The Latest News

• John Templeton Foundation awards $2.1 million grant to ND Law’s Religious Liberty Initiative
• ND Law’s IP & Entrepreneurship Clinic settles in at Innovation Park
• ND Stories podcast: Proving Innocence
• Nicole Garnett on Carson v. Makin Supreme Court case
• Other Carson v. Makin news briefs
• Faculty on Dobbs v. Jackson Supreme Court case
• Carter was on the National Constitution Center's We the People podcast, "The Dobbs v. Jackson Case – Part 2."
• Rick was a panelist in "Courthouse Steps Oral Argument Webinar: Dobbs v. Jackson Women's Health Organization" sponsored by the Federalist Society."
• Barry Cushman on the Pacific …

Delegation, Administration, And Improvisation, Kevin Arlyck

Notre Dame Law Review

Nondelegation originalism is having its moment. Recent Supreme Court opinions suggest that a majority of Justices may be prepared to impose strict constitutional limits on Congress’s power to delegate policymaking authority to the executive branch. In response, scholars have scoured the historical record for evidence affirming or refuting a more stringent version of nondelegation than current Supreme Court doctrine demands. Though the debate ranges widely, sharp disputes have arisen over whether a series of apparently broad Founding-era delegations defeat originalist arguments in favor of a more demanding modern doctrine. Proponents—whom I call “nondelegationists”—argue that these historical delegations can all be …

The Duty Not To Continue Distributing Your Own Libels, Eugene Volokh

Notre Dame Law Review

Say something I wrote about you online (in a newspaper, a blog, or a social media page) turns out to be false and defamatory. Assume I wasn’t culpable when I first posted it, but now I’m on notice of the error.

Am I liable for defamation if I fail to remove or correct the erroneous material? Surprisingly, courts haven’t settled on an answer, and scholars haven’t focused on the question. Libel law is stuck in a time when newspapers left the publisher’s control as soon as they are printed—even though now an article or a post can be seen on …

Oversight Riders, Kevin M. Stack, Michael P. Vandenbergh

Notre Dame Law Review

Congress has a constitutionally critical duty to gather information about how the executive branch implements the powers Congress has granted it and the funds Congress has appropriated. Yet in recent years the executive branch has systematically thwarted Congress’s powers and duties of oversight. Congressional subpoenas for testimony and documents have met with blanket refusals to comply, frequently backed by advice from the Department of Justice that executive privilege justifies withholding the information. Even when Congress holds an official in contempt for failure to comply with a congressional subpoena, the Department of Justice often does not initiate criminal sanctions. As a …

Copyright And The Creative Process, Mark Bartholomew

Notre Dame Law Review

Copyright is typically described as a mechanism for encouraging the production of creative works. On this view, copyright protection should be granted to genuinely creative works but denied to non-creative ones. Yet that is not how the law works. Instead, almost anything—from test answer sheets to instruction manuals to replicas of items in the public domain—is deemed creative and therefore eligible for copyright protection. This is the consequence of a century of copyright doctrine assuming that artistic creativity is incapable of measurement, unaffected by personal motivation, and incomprehensible to novices and experts alike. Recent neuroscientific research contradicts these assumptions. It …

Law Is In The Bin: New Frontiers In Conceptual Art And Legal Liability, Katelyn E. Doering

Notre Dame Law Review

Part I of this Note begins with a discussion of who Banksy is and why his work is important to this legal debate, finishing with a detailed description of the features of conceptual art that are relevant for legal analysis and an argument that the shredding stunt—the event itself, not the partially shredded canvas—is a work of conceptual art. Part II argues that the unique features of the shredding stunt, and of future works in the same artistic category, present a novel legal problem both for artists and for buyers. This novel problem is explored through the lens of …

Libel By Omission Of Exculpatory Legal Decisions, Eugene Volokh

Notre Dame Law Review

Is it libelous to write that someone has been convicted of a crime, but to fail to mention that the conviction has been reversed? Or to write that someone has been charged, without mentioning the acquittal? The answers, it turns out, are often “yes”; this Article lays out the precedents that so conclude.

Cancelling Capitalism?, Christina P. Skinner

Notre Dame Law Review

Grow the Pie’s defense of capitalism is a tremendous contribution, albeit one which Edmans himself downplays. While the author largely bills his work as one aiming to correct the factual record about profitmaximization— while providing pointers for managers and policymakers—Edmans reaffirms the validity and viability of corporate capitalism as an ideology that, in practice, advances human welfare.

Injecting this viewpoint into the academic debate is critically important at a time when voices of stakeholderists seem the loudest. Sociological research long ago confirmed that societal expectations (as often shaped by academic discourse) have real impact on our social systems and …

Bostock Was Bogus: Textualism, Pluralism, And Title Vii, Mitchell N. Berman, Guha Krishnamurthi

Notre Dame Law Review

In Bostock v. Clayton County, one of the blockbuster cases from its 2019 Term, the Supreme Court held that federal antidiscrimination law prohibits employment discrimination on grounds of sexual orientation and gender identity. Unsurprisingly, the result won wide acclaim in the mainstream legal and popular media. Results aside, however, the reaction to Justice Neil Gorsuch’s majority opinion, which purported to ground the outcome in a textualist approach to statutory interpretation, was more mixed. The great majority of commentators, both liberal and conservative, praised Justice Gorsuch for what they deemed a careful and sophisticated—even “magnificent” and “exemplary”—application of textualist principles, …

Forum Selection Clauses, Non-Signatories, And Personal Jurisdiction, John F. Coyle, Robin J. Effron

Notre Dame Law Review

Who is bound by a forum selection clause? At first glance, the answer to this question may seem obvious. It is black letter law that a person cannot be bound to an agreement without her consent. In recent years, however, courts have not followed this rule with respect to forum selection clauses. Instead, they routinely enforce these clauses against individuals who never signed the contract containing the clause. Courts justify this practice on the grounds that it promotes litigation efficiency by bringing all of the litigants together in the chosen forum. There are, however, problems with enforcing forum selection clauses …

It’S A Trap: A New Economic Model Addressing American Public Education, Nikhil A. Gulati

Notre Dame Law Review

This Note will argue that, when looking at the quality of a school district, there is some theoretical threshold that determines whether the use of local property tax and zoning by a local government will be effective in increasing the quality of the locality’s schools. This theoretical threshold is conceptually akin to the basic economic idea of a poverty trap. If a locality’s schools are above this quality threshold, the corresponding local government will be able to effectively utilize property taxes and zoning to increase the quality of its schools. However, if it is below the threshold, the local government …

Uncertain Terms, Leah R. Fowler, Jim Hawkins, Jessica L. Roberts

Notre Dame Law Review

Health apps collect massive amounts of sensitive consumer data, including information about users’ reproductive lives, mental health, and genetics. As a result, consumers in this industry may shop for privacy terms when they select a product. Yet our research reveals that many digital health tech companies reserve the right to unilaterally amend their terms of service and their privacy policies. This ability to make one-sided changes undermines the market for privacy, leaving users vulnerable. Unfortunately, the current law generally tolerates unilateral amendments, despite fairness and efficiency concerns. We therefore propose legislative, regulatory, and judicial solutions to better protect consumers of …

Our Divided House, Gerard V. Bradley

Journal Articles

CRISIS OF THE TWO CONSTITUTIONS: THE RISE, DECLINE, AND RECOVERY OF AMERICAN GREATNESS
by Charles R. Kesler
ENCOUNTER, 488 PAGES, $34.99

Lincoln is a recurring focus of Charles Kesler's learned and timely new book, Crisis of the Two Constitutions. Kesler turns to him because Lincoln possessed a profound understanding of the American Constitution and because Lincoln spoke more eloquently than anyone else ever has about the central theme of the book: the fact that the United States was founded on universal principles of justice “applicable to all men and all times."

Mmu: 11/29/21–12/05/21, Student Bar Association

Monday Morning Update

This Week @ NDLS

General Announcements

Stoic Start to the Week

Sport Report by Ashley Topel

1L of the Week: Tony Imburgia

2Ls Taking Ls: Caleb Perez

Ask a 3L: Gordon McCormack

Fc21 – What Should It Mean For A Catholic University To Be 'Anti-Racist'?, Marcus Cole, Robert K. Vischer

2019–Present: G. Marcus Cole

By Robert K. Vischer (University of St. Thomas School of Law), with a response by G. Marcus Cole (Notre Dame Law School). From the 2021 Notre Dame Fall Conference, "I Have Called You By Name: Human Dignity in a Secular World". Session chair: Sean Seymore (Notre Dame Law School).

Full speaker lineup: https://ethicscenter.nd.edu/programs/

Mmu: 11/29/21–12/05/21, Student Bar Association

Monday Morning Update

This Week @ NDLS

General Announcements

Stoic Start to the Week

Sport Report by Ashley Topel

1L of the Week: Tony Imburgia

2Ls Taking Ls: Caleb Perez

Ask a 3L: Gordon McCormack

Ndls Communicator: Week Of 11.29.21, Notre Dame Law School

NDLS Communicator

The Latest News

• Religious Liberty Initiative files amicus brief in Supreme Court case Shurtleff v. Boston
• ND Law ranked ninth in number of graduates working at highest-grossing U.S. law firms
• Rick Garnett and Carter Snead on the upcoming Supreme Court case, Dobbs v. Jackson Women’s Health Organization
• Sherif Girgis quoted in AP News article
• Felicia Caponigri publishes article in Cardozo Arts & Entertainment Law Journal
• Diane Desierto writes for EJIL Talk!
• Nicole Garnett to speak at Manhattan Institute panel

Student News

• Everyday Holiness Podcast: Fr. Matt Kuczora

Events

• Monday, November 29: Graduate Seminar Speaker Series: Government Lawyering with Roger Alford, …

Ndls Communicator: Week Of 11.22.21, Notre Dame Law School

NDLS Communicator

The Latest News

• Rice-Hasson Distinguished Lecture Series: Mary Ann Glendon
• Inalienable Rights and the Traditions of Constitutionalism Conference
• Christine Venter wrote for BYU Law
• Jay Tidmarsh quoted in the news
• Father John Paul Kimes speaks to NPR
• Jimmy Gurulé quoted in Newsweek
• Nicole Stelle Garnett publishes new report on private-school choice
• Rick Garnett on Bloomberg Law podcast: Religious Rights and State Secrets at SCOTUS
• Diane Desierto co-authors policy brief for Pulte Institute
• Sean Seymore to give talk at Harvard Law
• Emily Bremer participates in ABA panel discussion

Student News

• ND Law student speaks at National Association of Muslim Lawyers conference …

Mmu: 11/22/21–11/28/21, Student Bar Association

Monday Morning Update

Weekly Activities

General Announcements

Stoic Start to the Week

Sport Report by Ashley Topel

1L of the Week: Anthony Krempa

2Ls Taking Ls: Laura Mahoney

Ask a 3L: Phil Klindt

Brief Of Amicus Curiae Notre Dame Law School Religious Liberty Initiative In Support Of Petitioners, Nicole Stelle Garnett, Richard W. Garnett Iv, John A. Meiser, Steven A. Engel, Michael H. Mcginley, Eric D. Hageman, Justin M. Romeo, Lincoln Davis Wilson

Court Briefs

No. 20-1800
Harold Shurtleff v. City of Boston

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

From the Summary of Argument

Invoking the specious rationale of “government speech,” the City of Boston unconstitutionally singled out religious expression for hostile treatment. By lumping speech based on “religion” together with speech deemed “inappropriate,” “offensive,” “discrimin[atory],” or “prejudice[d],” Pet.App.20, the City adopted the increasingly common view that promoting our Nation’s vibrant pluralism requires the exclusion of religious perspectives from the public square. But that view is antithetical to the Founders’ conception of religion as central—not peripheral—to …

Mmu: 11/15/21–11/21/21, Student Bar Association

Monday Morning Update

This Week @ NDLS

General Announcements

Stoic Start to the Week

Sport Report by Ashley Topel

1L of the Week: Rita Lake

2Ls Taking Ls: Janae Yip

Ask a 3L: Jess Wolfert