Law Commons^™

Moral Constitutionalism, Gerard V. Bradley

Journal Articles

The author holds that originalism remains the correct principle for interpreting our Constitution.

The Morality Of Fiduciary Law, Paul B. Miller

Journal Articles

Recent work of fiduciary theory has provided conceptual synthesis requisite to understanding core fiduciary principles and the structure of fiduciary liability. However, normative questions have received only sporadic attention. What values animate fiduciary law? How does, or ought, fiduciary law prove responsive to them?

Where in other areas of private law theory – notably, tort theory – pioneering scholars went directly at normative questions like these, fiduciary theory has been exceptional for the reticence shown toward them. The reticence is sensible. Fiduciary principles are the product of equity’s most extended and convoluted program of supplementing surrounding law. They span several …

Advisory Opinions And The Problem Of Legal Authority, Christian R. Burset

Journal Articles

The prohibition against advisory opinions is fundamental to our understanding of federal judicial power, but we’ve misunderstood its origins. Discussions of the doctrine begin not with a constitutional text or even a court case, but a letter in which the Jay Court rejected President Washington’s request for legal advice. Courts and scholars have offered a variety of explanations for the Jay Court’s behavior. But they all depict the earliest Justices as responding to uniquely American concerns about advisory opinions.

This Article offers a different explanation. Drawing on previously untapped archival sources, it shows that judges throughout the anglophone world—not only …

Rethinking Protections For Indigenous Sacred Sites, Stephanie H. Barclay, Michalyn Steele

Journal Articles

Meaningful access to sacred sites is among the most important principles to the religious exercise of Indigenous peoples, yet tribes have been repeatedly thwarted by the federal government in their efforts to vindicate this practice of their religion. The colonial, state, and federal governments of this Nation have been desecrating and destroying Native American sacred sites since before the Republic was formed. Unfortunately, the callous destruction of Indigenous sacred sites is not just a troubling relic of the past. Rather, the threat to sacred sites and cultural resources continues today in the form of spoliation from development, as well as …

Negative-Value Property, Bruce R. Huber

Journal Articles

Ownership is commonly regarded as a powerful tool for environmental protection and an essential solution to the tragedy of the commons. But conventional property analysis downplays the possibility of negative-value property, a category which includes contaminated, depleted, or derelict sites. Owners have little incentive to retain or restore negative-value property and much incentive to alienate it. Although the law formally prohibits the abandonment of real property, avenues remain by which owners may functionally abandon negative-value property, as demonstrated recently by busts in certain coal and oil & gas markets. When negative-value property is abandoned, whether formally or functionally, the rehabilitation …

Dissenting From The Bench, Christine M. Venter

Journal Articles

This paper examines the oral dissents of Justices Antonin Scalia and Ruth Bader Ginsburg from the year 2000 to the times of their respective deaths. It explores the concept and purpose of oral dissent and details the kinds of cases in which each justice was more likely to orally dissent. The paper analyzes the kinds of rhetoric that each justice used to refer to their subject matter, and argues that Scalia's rhetoric evinces a view of the law as "autonomous", operating independently of the facts of the case. In contrast, Ginsburg's view espouses a view of the law as responsive …

The High Cost Of Eviction: Struggling To Contain A Growing Social Problem, Judith Fox

Journal Articles

Matthew Desmond’s Pulitzer Prize winning book, focused public attention on the issue of eviction. As a result, scholars have begun to investigate and challenge some of the assumptions made in the book. Primarily, is eviction the cause of poverty or one of its consequences? This article explores several options in an attempt to explain the high number of evictions in America. These include, among others, the lack of affordable housing, failed governmental policies, the rise of institutional landlords and the role of courts. The article highlights some interventions that have begun to show progress in easing the burden of eviction. …

Moral Truth And Constitutional Conservatism, Gerard V. Bradley

Journal Articles

Conservative constitutionalism is committed to "originalism," that is, to interpreting the Constitution according to its original public understanding. This defining commitment of constitutional interpretation is sound. For decades, however, constitutional conservatives have diluted it with a methodology of restraint, a normative approach to the judicial task marked by an overriding aversion to critical moral reasoning. In any event, the methodology eclipsed originalism and the partnership with moral truth that originalism actually entails. Conservative constitutionalism is presently a melange of mostly unsound arguments against the worst depredations of Casey's Mystery Passage.

The reason for the methodological moral reticence is easy to …

Specialty Bar Associations And The Marketing Of Ethics: The Example Of The Academy Of Adoption Attorneys, Malinda L. Seymore

Notre Dame Journal of Law, Ethics & Public Policy

No abstract provided.

Bringing Corporate Governance Down To Earth: From Culmination Outcomes To Comprehensive Outcomes In Shareholder And Stakeholder Capitalism, Malcolm Rogge

Notre Dame Journal of Law, Ethics & Public Policy

No abstract provided.

Solitary Confinement As Illegitimately Proscribed And Disproportional Punishment: Another Angle From Which To Attack The Inhumane Practice, Danika J. Anderson

Notre Dame Journal of Law, Ethics & Public Policy

No abstract provided.

Dangerous To Be Right When Established Authorities Are Wrong: A Proposal For The Protection Of America’S Migratory Birds, Dylan-Forrest F. Greene

Notre Dame Journal of Law, Ethics & Public Policy

No abstract provided.

Reforming The Eitc And Ctc To Provide Greater Income Stability — An Alternative To Ubi, Jacqueline Heafey

Notre Dame Journal of Law, Ethics & Public Policy

No abstract provided.

The Strained Relationship Between Hair Discrimination And Title Vii Litigation And Why It Is Time To Use A Different Solution, Christine Kennedy

Notre Dame Journal of Law, Ethics & Public Policy

No abstract provided.

Symposium Spring 2021: The Ethics Of Government Service

Notre Dame Journal of Law, Ethics & Public Policy

No abstract provided.

The Anatomy Of Government Ethics Reform: Lessons Learned, A Path Forward, Paula A. Franzese

Notre Dame Journal of Law, Ethics & Public Policy

No abstract provided.

Unweaving Hubbard’S Web: A Review Of Alabama’S Ethics Laws, Ferris Stephens, Andrew R. D'Entremont

Notre Dame Journal of Law, Ethics & Public Policy

No abstract provided.

Elected-Official-Affiliated Nonprofits: Closing The Public Integrity Gap, Richard Briffault

Notre Dame Journal of Law, Ethics & Public Policy

No abstract provided.

Conscience Leave, Andrew K. Jennings

Notre Dame Journal of Law, Ethics & Public Policy

No abstract provided.

The Role Of Norms In Modern-Day Government Ethics, Veronica R. Martinez

Notre Dame Journal of Law, Ethics & Public Policy

No abstract provided.

Quid Pro No? The Bribery Statute’S Failure To Capture The “Official Acts” Of High-Ranking Public Officials, Lauren N. Vaca

Notre Dame Journal of Law, Ethics & Public Policy

No abstract provided.

A New Prescription: The Case For Enterprise Liability Reform In Light Of The Opioid Epidemic, Keith Ongeri

Notre Dame Journal of Law, Ethics & Public Policy

No abstract provided.

Reevaluating Legal Theory, Jeffrey A. Pojanowski

Journal Articles

Must a good general theory of law incorporate what is good for persons in general? This question has been at the center of methodological debates in general jurisprudence for decades. Answering “no,” Julie Dickson’s book Evaluation and Legal Theory offered both a clear and concise conspectus of positivist methodology, as well as a response to the longstanding objection that such an approach has to evaluate the data it studies rather than simply describe facts about legal systems. She agreed that legal positivism must evaluate. At the same time, she argued, it is possible to offer an evaluative theory of the …

Electoral Votes Regularly Given, Derek T. Muller

Journal Articles

Every four years, Congress convenes to count presidential electoral votes. In recent years, members of Congress have objected or attempted to object to the counting of electoral votes on the ground that those votes were not "regularly given." That language comes from the Electoral Count Act of 1887. But the phrase "regularly given" is a term of art, best understood as "cast pursuant to law." It refers to controversies that arise after the appointment of presidential electors, when electors cast their votes and send them to Congress. Yet members of Congress have incorrectly used the objection to challenge an assortment …

Human Dignity Has No Borders: Respecting The Rights Of "People On The Move" And The Rights And Religious Freedom Of Those Who Aid Them, Christine M. Venter

Journal Articles

This Article argues that states must desist from and be held accountable for the ongoing practices of denying refugees due process and denying humanitarian groups the rights to freely associate and freely exercise their religion in assisting refugees.

Human Diginity And The Foundations Of Human Rights, Paolo G. Carozza

Book Chapters

Chapter 7

From the opening paragraphs, "The claim that I aim to present and defend in this Special Report is that the thin intellectual foundations of human rights law require us to turn to more elemental aspects of human experience in order to test and evaluate the persuasiveness of human rights’ claim to correspond to universal human needs and desires."

This essay was previously published as Heritage Foundation Special Report No. 239 on December 31, 2020.

Publisher: Heritage Foundation

Historical Basis And Legal Development [Of International Humanitarian Law], Mary Ellen O'Connell

Book Chapters

Chapter 2

Although the subject of this Handbook is the law applicable to the conduct of hostilities that applies once a party has entered into armed conflict (the jus in bello), that law cannot be properly understood without some examination of the separate body of rules which determines when resort to armed force is permissible (the jus ad bellum). The jus ad bellum has ancient origins but current law is founded on Article 2(4) and Chapter VII of the UN Charter.

Additional chapter authors:

Michael Bothe, Knut Dörmann, Tristan Ferraro, Nobuo Hayashi, Wolff Heintschel von Heinegg, Knut Ipsen, Ben F …

On Being First, On Being Only, On Being Seen, On Charting A Way Forward, Veronica Root Martinez

Journal Articles

This Essay reflects upon my professional experiences as a Black woman both at Notre Dame and beyond. It argues that it is important for students to have demographically diverse professors within their educational environments. It calls for the Notre Dame Law School community to continue to create a diverse, equitable, and inclusive culture.

Fashion's Brand Heritage, Cultural Heritage, And The Piracy Paradox, Felicia Caponigri

Journal Articles

This Article explores the role that heritage has on our understanding of the appropriateness of intellectual property protection for fashion designs in light of Christopher Sprigman and Kal Raustiala’s seminal work in The Piracy Paradox. At times, heritage seems to both reinforce Sprigman and Raustiala’s argument that fashion thrives in a low-IP regime and, at other times, heritage challenges that argument. Taking Italian fashion design as a case study, this Article considers the intersection of brand heritage, cultural heritage, and intellectual property law and makes three central observations. First, that fashion designs reflecting brand heritage thrive in a low-IP regime. …

The Rediscovered Stages Of Agency Adjudication, Emily S. Bremer

Journal Articles

Modern administrative law understands the Administrative Procedure Act (APA) to establish an informal and a formal procedural mode of two types of agency action: rulemaking and adjudication. This Article argues that this understanding, which is sound as applied to rulemaking, is wrong as applied to adjudication.

Revisiting the voluminous and long-neglected research that informed the APA, this Article argues the statute codified informal and formal stages—not modes—of adjudication. In this staged process, informal procedures such as investigations, examinations, inspections, and conferences are used in the initial stages of the process and are sufficient to finally dispose of the vast majority …