Law Commons^™

Dynamic Property Taxes And Racial Gentrification, Andrew T. Hayashi

Notre Dame Law Review

Many jurisdictions determine real property taxes based on a combination of current market values and the recent history of market values, introducing a dynamic aspect to property taxes. By design, homes in rapidly appreciating neighborhoods enjoy lower tax rates than homes in other areas. Since growth in home prices is correlated with—and may be caused by—changing neighborhood demographics, dynamic property taxes will generally have racially disparate impacts. These impacts may explain why minority-owned homes tend to be taxed at higher rates. Moreover, the dynamic features of local property taxes may subsidize gentrification and racially discriminatory preferences.

Who Has The Right?: Analysis Of Second Amendment Challenges To 18 U.S.C. § 922(G)(4), Alexandra T. Cline

Notre Dame Law Review

This Note argues that courts should decide challenges to § 922(g)(4) solely under the first step of the test, based on the notion that individuals subject to § 922(g)(4) fall outside the scope of Second Amendment protection. Thus, under the two-part test, the law would not burden conduct protected by the Amendment, rendering step two unnecessary for at least the vast majority of § 922(g)(4) challenges. This Note provides three independent ways in which courts could deem § 922(g)(4) outside the purview of the Second Amendment, and each should be considered a permissible approach.

The first Part of this Note …

June Medical And The Marks Rule, Owen P. Toepfer

Notre Dame Law Review

This Note, proceeding in three parts, describes the history of the Court’s abortion jurisprudence, evaluates the current state of the Marks rule, and demonstrates that Chief Justice Roberts’s concurrence in June Medical is the controlling opinion for Marks purposes under each definition of “narrowest” that several federal circuit courts of appeals employ. Part I first traces the historical arc of abortion jurisprudence from Roe v. Wade to June Medical and thereafter provides background on the history of and academic reactions to the Marks rule. Part II considers the various approaches to the Marks rule taken by the several federal circuits …

Notre Dame Lawyers Connect: April-May 2021, Notre Dame Law School

Notre Dame Lawyers Connect

Father Mike Show returns next week

Support the Women’s Empowerment Stipend

Notre Dame Day: Support the Law School on ND Day

Alumni Spotlights:

• Notre Dame Alumni Association honors Jessica Binzoni in Domer Dozen
• Kathaleen McCormick nominated to lead Delaware Court of Chancery

Alumni Notes:

• Three 2020 grads join Shook, Hardy & Bacon: Ijeoma Odigwe ’20 J.D., Yara Rashad ’20 J.D., and Hannah Sanchez ’20 J.D.
• Tony Carucci
• LisaMarie Collins
• Alfred J. Stashis Jr.

The Federal Reserve As Collateral's Last Resort, Colleen M. Baker

Notre Dame Law Review

This Essay is the first step in a broader normative project analyzing the proper balance between legislation and central bank policy—between architecture and implementation—in shaping the Federal Reserve’s collateral framework to best promote market discipline and to minimize credit allocation. Its modest aim is twofold. First, it provides the first analysis of central bank collateral frameworks in the legal scholarship. Second, it analyzes the equilibrium between legislation and central bank policy in the Federal Reserve’s collateral framework in the context of its section 13(3) emergency liquidity authority, lending authority for designated financial market utilities, and swap lines with foreign central …

Efficient Ethical Principles For Making Fatal Choices, W. Kip Viscusi

Notre Dame Law Review

Resource allocations of all kinds inevitably encounter financial constraints, making it infeasible to make financially unbounded commitments. Such resource constraints arise in almost all health and safety risk contexts, which has led to a regulatory oversight process to ascertain whether the expected benefits of major regulations outweigh the costs. The economic approach to monetizing health and safety risks is well established and is based on the value of a statistical life (“VSL”). Government agencies use these values reflecting attitudes toward small changes in risk to monetize the largest benefit component of regulations—that dealing with mortality risks. This procedure consequently bases …

Quantitative Valuation In Environmental Law, Arden Rowell

Notre Dame Law Review

Quantitative valuations of environmental impacts affect and sometimes determine the substance and stringency of many environmental laws. At the same time, a constellation of psychological factors makes environmental impacts unusually difficult for individuals to see, understand, and care about. As a result, the environmental valuations that inform environmental law are particularly vulnerable to contextual cues, small shifts in framing, and methodological choice, and can lead to sincere but wildly varying valuations of the same underlying environmental impacts. These distortions become increasingly apparent when valuations are quantified, and in fact can be used predictably to push quantified valuations “up” and “down” …

The Injunction Function: How And Why Courts Secure Property Rights In Patents, Adam Mossoff

Notre Dame Law Review

This Essay addresses one aspect of this legal and policy debate concerning remedies in patent law: how and why courts presumptively secured patent owners with injunctions against ongoing or willful infringements of their property rights. Prompted by the United States Supreme Court’s 2006 decision in eBay v. MercExchange, which created a new four-factor test for issuing injunctions on a finding of ongoing infringement of a valid patent, there is a growing body of scholarly commentary on the role of injunctive remedies in securing property rights in new technological innovations. Much of this commentary focuses on how eBay has resulted in …

Putting The Equity Back Into Intellectual Property Remedies, Henry E. Smith

Notre Dame Law Review

Within the realm of remedies, intellectual property remedies have presented particular difficulties, and in intellectual property law, controversy has focused on remedies. Concerns about holdup in intellectual property have even begun to lead to innovations in the law of remedies itself. Many of the difficulties and controversies raging now center around remedies that are “equitable.” In this Essay I argue that recovering a major function of equity—as meta-law— helps us understand these problems and to offer potential solutions. Meta-law is a higher order intervention when regular law fails, in contexts of high complexity and uncertainty, often stemming from polycentricity, conflicting …

Stock Market Value And Deal Value In Appraisal Proceedings, Robert T. Miller

Notre Dame Law Review

This Essay considers two methods of valuing public companies in the context of appraisal proceedings under section 262 of the Delaware General Corporation Law (DGCL). The first method relies on the efficient capital markets hypothesis (ECMH) and values the company based on the market price of its shares before any public disclosure of the possibility of a transaction (the unaffected market price). The second relies on the price that an unrelated party agrees to pay to acquire the company in a transaction negotiated at arm’s length after a robust sales process by the selling board (the deal price). Both the …

Valuing Black And Female Lives: A Proposal For Incorporating Agency Vsl Into Tort Damages, Catherine M. Sharkey

Notre Dame Law Review

Federal agencies adopt a uniform VSL (value of statistical life)—one that does not vary according to demographic characteristics—in conducting cost-benefit analyses in connection with regulatory policy decisions. In sharp juxtaposition, the use of race- and gender-based statistics on wages and work-life expectancy in calculating tort wrongful death damage awards is an entrenched practice among forensic economists who serve as expert witnesses in tort litigation. The conventional use of race- and gender-specific economic data concerning wages and work-life expectancy in calculating tort damages leads to unjustifiable disparities in awards for blacks and women. Young female and minority tort victims bear the …

The Catholic Church And The Paycheck Protection Program: Assessing Nondiscrimination After Trinity Lutheran And Espinoza, Elizabeth Totzke

Notre Dame Law Review

This Note argues the inclusion of houses of worship and the subsequent dispersal of PPP funds to the Catholic Church was explicitly constitutional. Applying the lens of the Supreme Court’s recently announced nondiscrimination principle, this Note considers the ramifications of the SBA’s official policy and explores the constitutional justification for the SBA’s ad hoc PPP policy. In fact, under the nondiscrimination principle, this Note concludes that the SBA’s policy shift was not just constitutionally permissible, but probably constitutionally required.

How Federal Agencies Sue On Victims' Behalf: Parens Patriae, Equitable Remedies, And Procedure, Collin Berger

Notre Dame Law Review

This Note adds to the literature about federal agency actions on victims’ behalf by incorporating recent cases and comparing cases about courts’ power to parens patriae cases. Part I describes these two lines of cases: the parens patriae cases that define what states can do in federal court, and the cases on courts’ equitable powers in agency suits through Kokesh, Liu, and AMG Capital Management. Part II then considers potential practical issues with current agency processes, including a simple empirical analysis of the SEC’s records and how they might reflect the agency’s internal strategy and deadlines. Part III considers how …

Environmental Permits: Public Property Rights In Private Lands And The Extraction And Redistribution Of Private Wealth, Jason S. Johnston

Notre Dame Law Review

Back in 1995, Professor Epstein famously termed such use of the permit power a “racket,” and as observed very recently by Dave Owen, still today many landowners and conservative critics would agree with the Supreme Court’s description of the process (in Nollan v. California Coastal Commission) as an “out-and-out plan of extortion.” However extortionate such deals may be, regulators with permit power may require landowners to bargain with them before developing their land or else face legal sanctions. This Essay explores in more detail how such bargaining has played out under two of the most important permit regimes in …

Mmu: 03/29/21–04/04/21, Student Bar Association

Monday Morning Update

This Week @ NDLS

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Mmu: 03/28/22–04/03/22, Student Bar Association

Monday Morning Update

This Week @ NDLS

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Stoic Start to the Week

Lilla in London

Sport Report by Davis Lovvorn

1L of the Week: Daryl Naquin

2Ls Taking Ls: Emily Wickwire

Ask a 3L: Sravya Lakshmi

Amicus Brief Of The National Congress Of American Indians, A Tribal Elder, And Other Federal Indian Law Scholars And Organizations, Michalyn Steele, Stephanie Hall Barclay

Court Briefs

No. 21-15295
Apache Stronghold v. United States of America

Appeal from the United States District Court for the District of Arizona, Honorable Steven P. Logan (2:21-cv-00050-PHX-SPL)

From the Summary of the Argument

Meaningful access to sacred sites is a necessary part of the religious exercise of many Indigenous peoples. But tribes have been repeatedly denied such access by the federal government, and thus repeatedly thwarted in their efforts to engage in these important religious practices. In many instances, that access has been irrevocably denied and those efforts permanently thwarted by the total destruction of Indigenous sacred sites. Indeed, the colonial, …

Mmu: 03/22/21–03/28/21, Student Bar Association

Monday Morning Update

This Week @ NDLS

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• NDEP-Junk Science Month: Arson!
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Mmu: 03/15/21–03/21/21, Student Bar Association

Monday Morning Update

This Week @ NDLS

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• Crossings is open Monday thru Friday 7:30-4:00. Daily Specials.
• Order Crossings through Grubhub (8 a.m. to 2 p.m.)
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• Lexis for Transactional Law
• Junk Science Month: Ballistics
• The Attack on the U.S. Capitol: Pursuing Justice and Defending Our Democracy, A Conversation with Michael Sherwin, former Acting U.S. Attorney, District …

Brief For Council Of Islamic Schools In North America, Partnership For Inner-City Education, And Union Of Orthodox Jewish Congregations Of America As Amici Curiae In Support Of Petitioners, Nicole Stelle Garnett, Richard W. Garnett Iv, Michael H. Mcginley

Court Briefs

No. 20-1088
David and Amy Carson v. A. Pender Makin

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

From the Summary of Argument

This Court should grant certiorari in order to clarify that any discrimination on the basis of religious status or religious use is subject to “the most exacting scrutiny.” Trinity Lutheran Church of Columbia, Inc. v. Comer, 137 S. Ct. 2012, 2021 (2017).

Mmu: 03/08/21–03/14/21, Student Bar Association

Monday Morning Update

This Week @ NDLS

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• Crossings is open Monday thru Friday 7:30-4:00. Daily Specials.
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• Masterpiece Cakeshop, the Moralization of Commerce, and the Price of Citizenship
• Global Lawyering in Practice: In-House Counsels Abroad
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• Conversation with Professor Marcus Montooth
• Immigration in the Biden Era (Roundtable)
• Immigration Roungtable
• Tax Chat with Professor Kirsch–The Tax Consequences of COVIDDriven Remote Work
• Housing Discrimination Today
• IP in House: Paul Coletti, Johnson & Johnson, Patrick Bottini, Jack Link’s …

Women's History Month, Student Bar Association

Dignity, Solidarity, and Subsidiarity Resources

Learn more about the history of women's rights.

Mmu: 03/01/21–03/07/21, 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.
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• Global Lawyering in Practice: Perspectives on Multinational Law Firms
• Ask an Assistant Rector
• Prison Abolition Activism: A Conversation with IDOC Watch
• A Night with Bob Goff
• Exploring the School to Prison Pipeline: From Adolescent Development to College in Prison
• Regulation "Rational Basis," and the Right to Try to Save Your Own Life: the Future of the FDA
• ALCU's Work on Voting and Immigration Rights in …

Notre Dame Lawyers Connect: March 2021, Notre Dame Law School

Notre Dame Lawyers Connect

ND features Law School's exoneration work

3L joins Vice President Kamala Harris's staff

Religious Liberty Clinic is hiring

Upcoming Events: The Attack on the U. S. Capital

In Memoriam: John F. Sandner

Alumni Notes

• LaWanda Houston
• David C. Scheper
• Walter F. Brown
• Tom Clements

A Variable Number Of Cheers For Viewpoint-Based Regulations Of Speech, R. George Wright

Notre Dame Law Review Reflection

If there is one thing we think we know about the First Amendment, it is that speech restrictions based on viewpoint are especially objectionable. The Supreme Court has declared that “[i]f there is a bedrock principle underlying the First Amendment, it is that the government may not prohibit the expression of an idea simply because society finds the idea itself offensive or disagreeable.” For this proposition, the Court has on one occasion cited thirteen of its own precedents.

Much more broadly, the Court has also held that a government “has no power to restrict expression because of its message, its …

Mmu: 02/22/21–02/28/21, Student Bar Association

Monday Morning Update

This Week @ NDLS

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• An Evening with U.S. Poet Laureate Joy Harjo
• Clerking on Specialized Federal Courts
• Space Law: National Geospatial-Intelligence Agency
• An Unprecedented Transition: A Discussion of the Transition …

Mmu: 02/15/21–02/21/21, Student Bar Association

Monday Morning Update

This Week @ NDLS

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• JICL Symposium: Privacy in the Age of Surveillance: The Good, The Bad and The Ugly
• Inside the Art Institute of Chicago with Maria Simon, Senior Associate General Counsel
• Mental Health as a …

Mmu: 02/08/21–02/14/21, Student Bar Association

Monday Morning Update

General Announcements and Reminders

• Crossings is open Monday thru Friday 7:30-4:00
• Crossings and Grubhub Partnership
• CDO Announcements
• Lexis News for 1Ls
• Shoe Recycling Drive
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• Impeached Again? A Constitutional Debate
• Clerkships: Three Clerks' Perspectives
• George Floyd, Defunding the Police, and Transgender Activism: AConversation with Andrea Jenkins

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A Message from the Editor

1L …

Sonner V. Premier Nutrition Corp., Ruth Dapper, Bryce Young

Notre Dame Law Review Reflection

When sitting in diversity jurisdiction, must a federal court apply federal equitable principles when deciding state law claims, even if state law may provide a different outcome? That was the question before the United States Court of Appeals for the Ninth Circuit in the case of Sonner v. Premier Nutrition Corp. Although the Ninth Circuit’s published opinion relies on “seventy-five years” of unchanged law, the opinion joins a long list of cases that continue to help clarify the tenets from Erie Railroad Co. v. Tompkins and inform the courts and practitioners on the relationship between state and federal authority …

Celebrating Black History Month, Student Bar Association

Dignity, Solidarity, and Subsidiarity Resources

Learn more about Black history.