Law Commons^™

The Inconsistent Originalism Of Judge-Made Remedies Against Federal Officers, Stephen I. Vladeck

Notre Dame Law Review

Professor Carlos V´azquez and I have explained in depth why the Supreme Court’s evisceration of damages remedies for constitutional violations by federal officers is analytically and historically incoherent. And I have written elsewhere about the extent to which modern constitutional remedies doctrine has turned a remarkably blind eye to foundational principles of federalism—paying little more than lip service to the robust availability of common-law damages (and habeas) remedies against federal officers in state courts from the Founding through the Civil War—and, at least for damages, well into the twentieth century. I don’t mean to rehash (or relitigate) either argument here. …

Going Rogue: The Supreme Court's Newfound Hostility To Policy-Based Bivens Claims, Joanna C. Schwartz, Alexander Reinert, James E. Pfander

Notre Dame Law Review

In Ziglar v. Abbasi, 137 S. Ct. 1843 (2017), the Supreme Court held that a proposed Bivens remedy was subject to an exacting special factors analysis when the claim arises in a “new context.” In Ziglar itself, the Court found the context of the plaintiffs’ claims to be “new” because, in the Court’s view, they challenged “large-scale policy decisions concerning the conditions of confinement imposed on hundreds of prisoners.” Bivens claims for damages caused by unconstitutional policies, the Court suggested, were inappropriate.

This Essay critically examines the Ziglar Court’s newfound hostility to policy-based Bivens claims. We show that an …

A Dual System Of Justice: Financial Institutions And White-Collar Criminal Enforcement, Sebastian Bellm

Notre Dame Law Review

Proposing more severe punishment for white-collar criminals is not a new concept. While many argue for the increased prison time of white-collar offenders, others provide “a counter-perspective on the use of prison sentences.” Other areas of academic publication support the convergence of sentencing guidelines for white-collar and drug-related criminals, particularly in light of utilitarian and retributivist principles. Rather than simply recommending that white-collar criminals should be punished more, this Note proposes two distinct structural solutions that reevaluate the current policies directing the punishment of white-collar criminal conduct. Specifically, this Note argues that the Department of Justice (DOJ) should reconsider the …

The Impact Of Schrems Ii: Next Steps For U.S. Data Privacy Law, Andraya Flor

Notre Dame Law Review

Schrems II invalidated Privacy Shield because the court found that it did not provide an “essentially equivalent” level of protection compared to the guarantees of the GDPR. The National Security Agency (NSA) operated surveillance programs that had the potential to infringe on the rights of EU subjects, and there was a lack of oversight and effective judicial remedies to protect rights of EU data subjects, which undermined Privacy Shield as a mechanism for data transfers. This Note sets aside the surveillance and national security issue, which would require resolution through a shift in overall U.S. national security law, and instead …

Was Bivens Necessary?, Ann Woolhandler, Michael G. Collins

Notre Dame Law Review

Some federal common-law skeptics have provided criteria for keeping federal common law in check. Although not specifically addressing Bivensactions, Professor Nelson has argued that when engaged in federal common lawmaking, federal courts should see themselves as more tied to custom, general principles of the common law, and precedent, rather than seeing themselves as engaged in a freewheeling search for the best policy. This methodology makes federal common law less subject to criticism as usurping the lawmaking roles of other government actors. Professor Merrill has argued that federal common law needs to be specifically intended by the framers of a …

Stare Decisis As Authority And Aspiration, Randy J. Kozel

Notre Dame Law Review

The doctrine of stare decisis remains a defining feature of American law despite challenges to its legitimacy and efficacy. Even so, there is space between the role that stare decisis currently plays and the potential that it offers. The gap is evident in the jurisprudence of the U.S. Supreme Court. Though the Justices continue to underscore the fundamental status of stare decisis, the Court’s opinions sometimes seem quick to depart from precedents whose reasoning has fallen out of favor.

Using Bivens v. Six Unknown Named Agents as a case study, this Article explains how the Court can invigorate the doctrine …

Judicial Autonomy V. Executive Authority: Which Prevails In The Case Of A Postcommutation Collateral Attack?, Vincent A. Marrazzo

Notre Dame Law Review

An inmate with a commuted sentence will sometimes collaterally attack his already commuted sentence. This raises the question: Does an act of executive clemency divest the courts of authority to hear the collateral attack? In other words, does clemency moot the issues involved in the collateral attack? While multiple circuit courts have weighed in on this question, the Fourth and Sixth Circuits have developed the most robust discussions, disagreeing about whether federal courts may hear these cases. The Fourth Circuit has held that a collateral attack postcommutation is moot as the “President’s commutation order simply closes the judicial door.” In …

Recovering The Tort Remedy For Federal Official Wrongdoing, Gregory Sisk

Notre Dame Law Review

As the Supreme Court weakens the Bivens constitutional tort cause of action and federal officers avoid liability for unlawful behavior through qualified immunity, we should recollect the merit of the common-law tort remedy for holding the federal government accountable for official wrongdoing. For more than a century after ratification of the Constitution, federal officers who trespassed on the rights of American citizens could be held personally liable under common-law tort theories, but then routinely were indemnified by the government.

The modern Federal Tort Claims Act (FTCA) roughly replicates the original regime for official wrongdoing by imposing liability directly on the …

Updating The Federal Agency Enforcement Playbook, Aiste Zalepuga

Notre Dame Law Review

This Note explores the relationship between equitable remedies and agency enforcement powers, arguing that federal courts are increasingly distinguishing between law and equity in remedies to impose limits on agency enforcement powers. Part I tracks factors driving the FTC’s broad reading of section 13(b) until AMG Capital. Part II analyzes developments in the SEC with a focus on Liu and suggest that federal courts are returning to traditional categories of equitable remedies. Part III concludes with two trends in determining the scope of agency enforcement powers. First, federal courts are requiring agencies to show that their use of equitable …

A Scapegoat Theory Of Bivens, Katherine M. Crocker

Notre Dame Law Review

Some scapegoats are innocent. Some warrant blame, but not the amount they are made to bear. Either way, scapegoating can allow in-groups to sidestep social problems by casting blame onto out-groups instead of confronting such problems—and the in-groups’ complicity in perpetuating them—directly.

This Essay suggests that it may be productive to view the Bivens regime’s rise as countering various exercises in scapegoating and its retrenchment as constituting an exercise in scapegoating. The earlier cases can be seen as responding to social structures that have scapegoated racial, economic, and other groups through overaggressive policing, mass incarceration, and inequitable government conduct more …

Ndls Communicator: Week Of 04.26.21, Notre Dame Law School

NDLS Communicator

The Latest News

• Notre Dame Law School announces new exchange program with Tel Aviv University
• A New Lease on Life
• Carter Snead, Dan Kelly, and Stephanie Barclay participate in Notre Dame Day
• Lloyd Mayer quoted by CNN, guest on Bloomberg's podcast, and interviewed for Notre Dame News
• Rick Garnett quoted by Deseret News
• Nicole Garnett spoke with National Catholic Reporter
• Stephanie Barclay was quoted by EarthBeat
• Faculty News: Stephanie Barclay will host "Protecting Oak Flat and Other Indigenous Sacred Places" at noon on Thursday, April 29, featuring Brigham Young University Law Professor Michalyn Steele, Suzan Shown Harjo, Stephen Pevar of …

Mmu: 04/26/21–05/02/21, Student Bar Association

Monday Morning Update

This Week @ NDLS

General Announcements and Reminders

• Crossings is open Monday thru Friday 7:30-4:00. Daily Specials.
• Crossings and Grubhub Partnership
• CDO Announcements
• SBA Store
• Mass Schedule
• Justice for George Floyd? Unpacking the Verdict
• IPLS: Meet the Employers
• Combating Child Slave Labor: A Discussion About Nestle v. Doe
• The Role of Islamic Law in US Courts
• Alvin McKenna Alumnus of the Year Award Ceremony
• Free International Snacks!
• Obergefell, Masterpiece Cakeshop, and Fulton: Harnessing v. Unleashing 'Armies of Compassion
• Protecting Oak Flat and Other Indigenous Sacred Places
• IP in Practice: Tech Transactions
• Building an Anti-Racist Vocabulary: "Beyond Policing"

Resources and Updates …

Counting Heads: The Decennial Census And Adjustments To Enumeration, Jay E. Town

Notre Dame Law Review Reflection

The 2020 Decennial Census has become a lightning rod for litigious civil rights organizations, state attorneys general, and even members of Congress. At stake is the apportionment of representatives in the House of Representatives and the Electoral College divided amongst the several states. Furthermore, the “headcount” determines the allotment of $1.5 trillion in nondiscretionary federal dollars to be distributed to the various states based on the persons who are counted in each. The headcount is also used in redistricting of congressional districts. Make no mistake, litigation surrounds the manner in which the census arrives at its headcount after every census. …

Mmu: 04/19/21–04/25/21, Student Bar Association

Monday Morning Update

This Week @ NDLS

General Announcements and Reminders

• Crossings is open Monday thru Friday 7:30-4:00. Daily Specials.
• Crossings and Grubhub Partnership
• CDO Announcements
• Veteran Support: Storm the Stadium
• Moot Court Brief Writer Application & Statement of Interest DUE
• IndyBar Healthcare and Life Sciences Writing /Oral Competition
• NDLS Office Hours with Undergrads
• SBA Store
• Free International Snacks!
• Christian Legal Society Morning Prayer
• Mass Schedule
• Education's End: Why Our Colleges and Universities Have Given Up on the Meaning of Life
• SAVE THE DATE: Connect with IPTECH is on April 20th at 6 pm.
• NDLS Loan Repayment Assistance Program
• The 2021 Father Mike …

Ndls Communicator: Week Of 04.19.21, Notre Dame Law School

NDLS Communicator

The Latest News

• Commencement Update: Law School Ceremony, Saturday, May 22, noon EDT
• University-wide Commencement Exercises: Sunday, May 23, 11:00 a.m.
• Marcus Cole quoted in SouthBend Tribune
• Sadie Blanchard on theBusiness Scholarship Podcast
• Lloyd Mayer quoted by The Chronicle of Philanthropy and the Associated Press
• Stephanie Barclay spoke to NBC News
• Lisa Koop quoted by USA Today

Upcoming Events

• Tuesday, April 20: Fr. Mike Variety Show, 7:30 p.m., east practice field south of Eck Tennis Pavilion
• Wednesday, April 21: Mini-break day
• Friday, April 23: Law & Economics Seminar, 12:30 p.m., zoom
• Private Law Workshop, 12:30 p.m., zoom
• Building an Anti-Racist …

Mmu: 04/12/21–04/18/21, Student Bar Association

Monday Morning Update

This Week @ NDLS

General Announcements and Reminders

• Crossings is open Monday thru Friday 7:30-4:00. Daily Specials.
• Crossings and Grubhub Partnership
• CDO Announcements
• Moot Court 1L Tournament
• IP & Technology Law Program's Annual Writing Competition
• Prepare to Practice Consultations
• NDLS Office Hours with Undergrads
• SBA Store
• Christian Legal Society Morning Prayer
• Mass Schedule
• Rape Kit Backlog Panel
• IP Attaché Information Session
• Department of Justice Tax Division
• Created Equal: Clarence Thomas in his Own Words Screening
• Clinic Information Session
• 5 Questions with Senator Todd Young on his career in public service
• The Regulation of Social Media with Alumni and Colleagues in …

Ndls Communicator: Week Of 04.12.21, Notre Dame Law School

NDLS Communicator

The Latest News

• Diane Desierto wrote a post for the European Journal of International Law blog
• Notre Dame is helping the Catholic Church with Underutilized Real Estate
• Jimmy Gurulé quoted in USA Today and Voice of America
• Stephanie Barclay quoted by United Press International
• Mary Ellen O'Connell's scholarship cited by Sri Lanka Guardian
• Jimmy Gurulé and the Exoneration Justice Clinic provide hope for Andrew Royer
• Training program brings together communities, government, and developers in Amazon region
• Faculty News: On April 13 at 4:00 p.m. Mary Ellen O'Connell will participate in the discussion, "Justice for Some: Law and the Questions of …

Mmu: 04/05/21–04/11/21, Student Bar Association

Monday Morning Update

This Week @ NDLS

General Announcements and Reminders

• Crossings is open Monday thru Friday 7:30-4:00. Daily Specials.
• Crossings and Grubhub Partnership
• CDO Announcements
• Moot Court 1L Tournament Registratoin & Oralist Statement of Interest Due
• Fall Externships Information for 1Ls and 2Ls
• NDLS Office Hours with Undergrads
• SBA Store
• Christian Legal Society Morning Prayer
• Mass Schedule
• 1L Judicial Clerkship Overview, Applications, Timing and Process
• Free International Snacks!
• Exoneration Justice Clinic Information Session
• Notre Dame Law in D.C. (Spring 2022) Externship Info Session
• NDLS Journal Information Session
• Conversations on Notre Dame's Global Engagement
• Life After Notre Dame with Dr. Vinodh Jaichand
• Professor …

Ndls Communicator: Week Of 04.05.21, Notre Dame Law School

NDLS Communicator

The Latest News

• Jimmy Gurulé talks to USA Today
• Nicole Garnett moderates a discussion for the Federalist Society
• Mark McKenna talks to the Wall Street Journal
• Faculty News: Carter Snead will deliver the Harold T. Shapiro Lecture on Ethics, Science, and Technology hosted by Princeton University's James Madison Program
• Lloyd Mayer will be part of a webinar through the Lilly Family School of Philanthropy at IUPUI, "Charitable Crowdfunding: Who Gives, to What, and Why?"
• The Law School's new Religious Liberty Initiative hosted a panel discussion with women from different faith traditions, "Empowering Women through Religious Liberty," moderated by Stephanie Barclay …

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 …

The Futility Of Regulating Social Media Content In A Global Media Environment, Rick G. Morris

Notre Dame Journal on Emerging Technologies

Social media reaches more people on the planet than any prior form of media and transmits more information world-wide than ever before. It is an empowering factor in establishing and growing communities, but at the same time, creates havoc and disseminates pernicious and perhaps dangerous speech. And so it has been with the media from the beginning of time. Throughout the media’s history, efforts at regulation or control of media speech has been fraught with difficulty, ineffectiveness, discrimination, and failure. The use of technology can deceive the consumer of the information, and the social media companies as well. Both government …

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 …

Note: Patentability Of 3d Printed Biomaterials, Nicole Barba

Notre Dame Journal on Emerging Technologies

The Congressional criteria for patentability, detailed in 35 U.S.C §§101-03, states that an invention must be novel, useful, and nonobvious. In addition to these requirements, the Judiciary requires that the invention not be classified as a law of nature, natural phenomenon, or abstract idea. The purpose of each of these criterion is to ensure that patents are granted only to inventions that “promote the Progress of . . . useful Arts.” As new technologies emerge, it is unclear whether these judicially created criteria still serve that purpose or whether the criteria are overly expansive such that truly useful inventions are …

Can Permissionless Blockchains Avoid Governance And The Law?, Eric Alston, Wilson Law, Ilia Murtazashvili, Martin Weiss

Notre Dame Journal on Emerging Technologies

Permissionless (or public) blockchain networks are a new form of decentralized private governance in the digital sphere. Though legal scholars recognize the significance of law in the use of blockchain, existing research using legal and institutional perspectives leaves blockchain governance as something of a black box. We provide a more granular analysis, finding that blockchain governance operates on four distinct levels. Governance at the protocol layer involves discrete institutional design choices intended to constrain network members’ incentives in an ongoing sense. Subsidiary governance arises from the need for communities to draft protocol updates and from the fact that governance protocol …

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. …

An Education Theory Of Fault For Autonomous Systems, William D. Smart, Cindy M. Grimm, Woodrow Hartzog

Notre Dame Journal on Emerging Technologies

Automated systems like self-driving cars and “smart” thermostats are a challenge for fault-based legal regimes like negligence because they have the potential to behave in unpredictable ways. How can people who build and deploy complex automated systems be said to be at fault when they could not have reasonably anticipated the behavior (and thus risk) of their tools? Part of the problem is that the legal system has yet to settle on the language for identifying culpable behavior in the design and deployment for automated systems. In this article we offer an education theory of fault for autonomous systems—a new …

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 …

April 2021 - Sba D & I Newsletter, Student Bar Association

Dignity, Solidarity, and Subsidiarity Resources

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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 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 …