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Mmu: 02/01/21–02/07/21, Student Bar Association

Monday Morning Update

This Week @ NDLS

General Announcements and Reminders

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Resources and Updates

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A Message from the Editor

1L of the Week: Dillon Yang

3LOL: John Michael Neubert

Legitimacy In The International Order: The Continuing Relevance Of Sovereign States, Brad R. Roth

Notre Dame Journal of International & Comparative Law

No abstract provided.

Masthead

Notre Dame Journal of International & Comparative Law

No abstract provided.

Letter From The Editor, Fon Bisalbutr

Notre Dame Journal of International & Comparative Law

No abstract provided.

Symposium Debate Transcript: The Promise Of International Law: Realism Versus Legalism, Journal Of International & Comparative Law, Notre Dame Law School

Notre Dame Journal of International & Comparative Law

No abstract provided.

The Widening Gyre: Legal Formalism And International Law’S Sense Of Place, Christopher R. Rossi

Notre Dame Journal of International & Comparative Law

No abstract provided.

Modern Day Extradition Practice: A Case Analysis Of Julian Assange, Daniela J. Restrepo

Notre Dame Journal of International & Comparative Law

No abstract provided.

Provisional Measures: How International Human Rights Law Is Changing International Law (Inspired By Gambia V. Myanmar), Christina M. Cerna

Notre Dame Journal of International & Comparative Law

No abstract provided.

The Commission On “Unalienable Rights”: A Critique, Douglass Cassel

Notre Dame Journal of International & Comparative Law

No abstract provided.

Focused Accountability: A Bilateral Response To The International Proliferation Of Fentanyl Analogues, Razi Lane

Notre Dame Journal of International & Comparative Law

No abstract provided.

The Law Wants To Be Formal, Chaim Saiman

Notre Dame Law Review

This Article examines the relationship between the formalism of an area of law, and whether it plays a central role in the legal system. English and American law were traditionally comprised of formalist private law doctrines. The influence of legal realism and the New Deal, however, caused these systems to diverge. While American private law was recast in realist terms, it also became less significant to the overall legal system. In its place, procedure and statutory interpretation emerged, and in turn became more formalized. Realism was never as influential in England where private law remains more formal and at the …

The Market As Negotiation, Rebecca Hollander-Blumoff, Matthew T. Bodie

Notre Dame Law Review

Our economic system counts on markets to allocate most of our societal resources. The law often treats markets as discrete entities, with a native intelligence and structure that provides clear answers to questions about prices and terms. In reality, of course, markets are much messier—they are agglomerations of negotiations by individual parties. Despite theoretical and empirical work on markets and on negotiation, legal scholars have largely overlooked the connection between the two areas in considering how markets are constructed and regulated.

This Article brings together scholarship in law, economics, sociology, and psychology to better understand the role that negotiation plays …

The Power Of Interpretation: Minimizing The Construction Zone, John O. Mcginnis, Michael B. Rappaport

Notre Dame Law Review

One of the most important conceptual innovations within modern originalism is the distinction between a zone of interpretation and a zone of construction. When constitutional provisions have a determinate meaning, decisions find that meaning occurs within the interpretation zone. But when the original meaning of a constitutional provision is indeterminate, decisions are based on something other than the original meaning and occur within the construction zone.

This Article represents the first sustained challenge to the importance of the distinction. It argues that a variety of techniques enhance the power of interpretation to resolve uncertainties and thus greatly reduce the size …

Antitrust Antitextualism, Daniel A. Crane

Notre Dame Law Review

Judges and scholars frequently describe antitrust as a common-law system predicated on open-textured statutes, but that description fails to capture a historically persistent phenomenon: judicial disregard of the plain meaning of the statutory texts and manifest purposes of Congress. This pattern of judicial nullification is not evenly distributed: when the courts have deviated from the plain meaning or congressional purpose, they have uniformly done so to limit the reach of antitrust liability or curtail the labor exemption to the benefit of industrial interests. This phenomenon cannot be explained solely or even primarily as a tug-of-war between a progressive Congress and …

Transparency In Plea Bargaining, Jenia I. Turner

Notre Dame Law Review

Plea bargaining is the dominant method by which our criminal justice system resolves cases. More than ninety-five percent of state and federal convictions today are the product of guilty pleas. Yet the practice continues to draw widespread criticism. Critics charge that it is too coercive and leads innocent defendants to plead guilty, that it obscures the true facts in criminal cases and produces overly lenient sentences, and that it enables disparate treatment of similarly situated defendants.

Another feature of plea bargaining—its lack of transparency—has received less attention, but is also concerning. In contrast to the trials it replaces, plea bargaining …

We Still Have Lessons To Learn From Woburn, And Flint Is A Good Place To Start, Rose Mooney

Notre Dame Law Review

By analyzing a previous water contamination lawsuit, this Note offers advice to litigants battling their current water crises. Specifically, this Note assesses the water contamination crisis that occurred in Woburn, Massachusetts, from the mid- to late-twentieth century and offers guidance to litigants fighting for clean water in Flint, Michigan, today. There is strength in this type of comparison: “Change in legislative actions and policy- making often result from previous environmental disasters out of which the public demands a change. In other words, we arguably learn from these disasters and effect changes to prevent them from occurring again.” The Woburn litigation …

Sex Offenders And The Free Exercise Of Religion, Christopher C. Lund

Notre Dame Law Review

In a variety of ways, sex offenders in the United States find themselves in a difficult position. One of the lesser-known ways relates to the free exercise of religion. Sometimes by categorical statute, and sometimes by individualized parole, probation, or supervised-release condition, sex offenders can find themselves legally barred from places where children are present (or likely to be present). Because children are usually present at religious services, sex offenders can find themselves unable to attend them altogether. And this hardship has a bit of irony in it too. Back in prison, sex offenders could worship freely with others; now …

Equitable Remedies: Protecting "What We Have Coming To Us", Larissa Katz

Notre Dame Law Review

This Article develops a new, doctrinally informed, theoretical account of equitable remedies in terms of our interest in “what we have coming to us”—an interest beyond private law’s commitment to protecting what is already ours, viz., our property rights and our rights to another’s performance of a contract. Through distinctive equitable remedies like specific performance, injunctions, and the remedial constructive trust, equity intervenes to prevent others from obstructing or diverting what a person has coming to her. The need for equity to recognize and to protect an interest in “what we have coming to us” arises, I argue, out of …

Locked, Loaded, And Registered: The Feasibility And Constitutionality Of A Federal Firearms Registration System, Dylan J. Mcdonough

Notre Dame Law Review

This Note is organized as follows. Part I outlines the evolving history of federal firearm legislation and its relevance to registration. Part I also presents promising state-level (or equivalent) systems of gun registration that may inform a like federal policy. Part II establishes the Supreme Court’s Second Amendment jurisprudence and its potential application to federal firearms registration. Part III then details a lower court’s application of Supreme Court precedent to existing firearm registration laws. Finally, this Note concludes by articulating how Congress can and why it must institute a federal firearms registration system.

Algorithmic Legal Metrics, Dan L. Burk

Notre Dame Law Review

Predictive algorithms are increasingly being deployed in a variety of settings to determine legal status. Algorithmic predictions have been used to determine provision of health care and social services, to allocate state resources, and to anticipate criminal behavior or activity. Further applications have been proposed to determine civil and criminal liability or to “personalize” legal default rules. Deployment of such artificial intelligence (AI) systems has properly raised questions of algorithmic bias, fairness, transparency, and due process. But little attention has been paid to the known sociological costs of using predictive algorithms to determine legal status. A large and growing social …

A Conversation With Justice Alan Page, Marcus Cole, John Jenkins, C.S.C., Justice Alan Page, Kaya Lawrence

2019–Present: G. Marcus Cole

Retired Minnesota Supreme Court Justice Alan Page, a 1967 University of Notre Dame graduate and the first African-American justice to serve on Minnesota’s highest court, will join G. Marcus Cole, the Joseph A. Matson Dean of Notre Dame Law School, for a virtual “fireside chat” at noon Jan. 18 (Monday), as part of the University’s commemoration of Martin Luther King Jr. Day. Page has been inducted into both the NFL and College Football Halls of Fame.

More information can be found at https://go.nd.edu/WalktheWalk

Dean G. Marcus Cole's Statement On The U.S. Capitol Attack, Marcus Cole

2019–Present: G. Marcus Cole

Dean G. Marcus Cole provides a clear statement to the members of the Notre Dame Law School community regarding the January 6, 2021, terrorist assault on the United States Capitol.

Perma.cc

The Lack Of Regulation In Preventing Greenwashing Of Cosmetics In The U.S., Alexa Riccolo

Journal of Legislation

If you walked through your local grocery or beauty store today, there is no doubt that you would be bombarded with thousands of different products. You may also observe that many labels accompanying these products utilize terms such as “organic,” “natural,” or “green” in their marketing efforts. Most consumers look to these labels and trust that the products are better for their health and the environment. In a recent study, over 80% of millennials believe that purchasing ecofriendly products not only improves their quality of life, but 75% of millennials are actively looking to make greener changes in their homes …

Cyber-Security, Privacy, And The Covid-19 Attenuation?, Vincent J. Samar

Journal of Legislation

Large-scale data brokers collect massive amounts of highly personal consumer information to be sold to whoever will pay their price, even at the expense of sacrificing individual privacy and autonomy in the process. In this Article, I will show how a proper understanding and justification for a right to privacy, in context to both protecting private acts and safeguarding information and states of affairs for the performance of such acts, provides a necessary background framework for imposing legal restrictions on such collections. This problem, which has already gained some attention in literature, now becomes even more worrisome, as government itself …

Regulating The Political Wild West: State Efforts To Disclose Sources Of Online Political Advertising, Victoria Smith Ekstrand, Ashley Fox

Journal of Legislation

The problem of disinformation in online political advertising is growing, with ongoing and potential threats to campaigns coming from both within and outside the United States. Most scholarship in this area has focused on either disclosures and disclaimers under the proposed Honest Ads Act or other fixes aimed at a gridlocked Federal Election Commission (“FEC”). With federal reform at a standstill, states have jumped into the void. Between the 2016 presidential election and early 2020, eight states passed legislation to expressly regulate online political advertising for state candidates and ballot measures, including Maryland, whose state law was declared unconstitutional as …

Michigan’S Driver’S Licensing Legislation: The Road To Unlicensed Drivers, Alexa Tipton

Journal of Legislation

No abstract provided.

State Attorneys General, Political Lawsuits, And Their Collective Voice In The Inter-Institutional Constitutional Dialogue, Mark C. Miller

Journal of Legislation

No abstract provided.

Jubilee Under Textualism, John Patrick Hunt

Journal of Legislation

No abstract provided.

The Absurdity Of The Illinois Felony-Murder Doctrine, Aidan Beck

Journal of Legislation

No abstract provided.

Occupational Hazard: A Critique Of California Elections Code § 13107(A)(3), Peter Nemerovski

Journal of Legislation

No abstract provided.