Law Commons^™

The Unfairness Of The Misnamed "Fairness For All" Act, Ryan T. Anderson, Robert P. George

Journal of Legislation Online

No abstract provided.

Common Sense Case For Common Ground Lawmaking: Three Cheers For Why Conservative Religious Organizations And Believers Should Support The Fairness For All Act, Tanner Bean, Robin Fretwell Wilson

Journal of Legislation Online Supplement

No abstract provided.

The Unfairness Of The Misnamed “Fairness For All” Act, Ryan T. Anderson, Robert P. George

Journal of Legislation Online Supplement

No abstract provided.

Clarity Or Confusion?: The Common Law Economic Substance Doctrine And Its Statutory Counterpart, Summer Desloge

Journal of Legislation

No abstract provided.

The Relationship Between The Bill Of Attainder Clause, The Use Of Sanctions As A Regulatory Tool For Foreign Trade, And Corporate Personhood, Alina Veneziano

Journal of Legislation

No abstract provided.

Federal Legislation Still Has A Role To Play In The Fight For Student-Athlete Compensation, Brandon Beyer

Journal of Legislation

No abstract provided.

Rluipa At 20: A Quantitative Study Of Its Impact On Land Use And Religious Minorities, Lucien J. Dhooge

Journal of Legislation

No abstract provided.

Does Objectives-Based Financial Regulation Imply A Rethink Of Legislatively Mandated Economic Regulation? A Literature Review, Bryane Michael, Say-Hak Goo, Svitlana Osaulenko

Journal of Legislation

No abstract provided.

#Courtstoo: Constitutional Judicial Accountability In The #Metoo Era, Zachary Johnson

Journal of Legislation

No abstract provided.

New Evidence For The Broad View: Reconsidering The Absolute Priority Rule In Individual-Debtor Chapter 11 Cases Post-Sbra, Justin J. Maroni

Journal of Legislation

No abstract provided.

Why Conservative Religious Organizations And Believers Should Support The Fairness For All Act, Chris Stewart, Gene Schaerr

Journal of Legislation

No abstract provided.

Brief Of Religious Liberty Scholars, Employment Law Scholars, And Karamah: Muslim Women Lawyers For Human Rights As Amici Curiae In Support Of Petitioner, Douglas Laycock, Richard W. Garnett

Court Briefs

No. 19-1388
Jason Small v. Memphis Light, Gas & Water

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

From the Summary of Argument

This case is an ideal vehicle for correcting an error that has undermined protection for religious workers across the country, in defiance of clear statutory text and underlying principles of religious liberty.

Notre Dame Lawyers Connect: July 2020, Notre Dame Law School

Notre Dame Lawyers Connect

Top Story: Notre Dame Law School establishes Religious Liberty Clinic

Community: Calling for racial justice

Rankings: ND Law lands in several top 10 lists

ND Law Association: New board members begin terms

Upcoming Events

Alumni Notes

• Mya Whitmore-Hinton
• Sean O'Brien
• Heather McShain

Breaking Down Systemic Barriers Around African American Entrepreneurship, Marcus Cole, Bryan Ritchie, Philip Gaskin, Andrew Welters

2019–Present: G. Marcus Cole

Jul 1, 2020

The benefits of entrepreneurship are well documented. Startups are responsible for nearly all job growth in the United States, experience growth rates substantially higher than other businesses, can help eliminate poverty and have an outsized impact on overall economic productivity and GDP. Despite this, entrepreneurship and venture capital have been largely closed to minorities, with African Americans being impacted particularly hard.

African Americans make up approximately 13 percent of the U.S. population yet only 2.2 percent of small businesses are owned by them. By comparison, whites make up approximately 60 percent of the population but own 82.5 …

The Meaning Of Federalism In A System Of Interstate Commerce: Free Trade Among The Several States, Donald J. Kochan

Notre Dame Law Review Reflection

As states become dissatisfied with either the direction of federal policy or the

gridlock that seems like a barrier frustrating action, their disdain or impatience is

increasingly manifest in state legislative or regulatory efforts to reach big issues

normally reserved to federal resolution. Increasingly, such efforts to stake a position

on issues of national or international importance are testing the limits of state

autonomy within a system of federalism that includes robust protection for the free

flow of commerce among the several states.

This Essay provides the primary historical backdrop against which these

measures should be judged with a particular …

Reconsidering Wrongful Birth, Luke Isaac Haqq

Notre Dame Law Review Reflection

The tort action for “wrongful birth” has a history dating back at least to the

1960s, when it emerged along with the claims for “wrongful life” and “wrongful

conception.” Since their incipience, this trio of lawsuits has generated an expansive

commentary, reaching into thousands of articles in the legal literature alone. With a

divide among federal circuits on wrongful birth only beginning to gain visibility with

Doherty v. Merck & Co. in 2018 and Zelt v. Xytex Corp. in 2019, the wrongful

birth claim could potentially provide a site for the Supreme Court to revisit national

abortion policy.

The …

The Great Writ And Federal Courts: Judge Wood's Solution In Search Of A Problem, William H. Pryor Jr.

Notre Dame Law Review

Judge Diane Wood provides, in her characteristically efficient prose, a thoughtful overview of the history of the Great Writ in service of a thesis that her essay otherwise fails to support. Judge Wood invokes Judge Henry Friendly’s classic article, Is Innocence Irrelevant? Collateral Attack on Criminal Judgments, to suggest that the writ of habeas corpus should be expanded to allow federal courts to review the petitions of state prisoners who allege their actual innocence without otherwise identifying any violation of federal law in securing their convictions. But that thesis cannot be squared with the proposal Judge Friendly championed in …

A Workable Substantive Due Process, Timothy M. Tymkovich, Joshua Dos Santos, Joshua J. Craddock

Notre Dame Law Review

In this Article, we have three objectives. First, we’d like to add our own conceptualization of the various flavors of due process adjudication. Our aim here is not to add a new theory, but to explain what exists in new ways— to put all the pieces of the due process puzzle together and explain how they relate to each other. To the surprise of some, perhaps, we find a small kernel of originalist truth within current forms of substantive due process. In short, the “shocks the conscience” strand of substantive due process jurisprudence prohibits some egregious torts by the state. …

A Survivor's Perspective: Federal Judicial Selection From George Bush To Donald Trump, Leslie H. Southwick

Notre Dame Law Review

Over recent decades, federal judicial selection controversies are worsening in their frequency and intensity. They distort all three branches of government. My particular concern is with federal judicial selection for judgeships below the Olympian heights of those on the United States Supreme Court, namely, the judges on the twelve regional circuit courts of appeals and the ninety-four district courts.

The depth of partisan acrimony over judicial confirmations has placed us in the infernal regions, and we seem to be continuing our descent. Analyzing how we got there is invariably affected by the biases, or more gently, by the perspectives of …

The Vra At A Crossroads: The Ability Of Section 2 To Address Discriminatory Districting On The Eve Of The 2020 Census, Ben Boris

Notre Dame Law Review

Part I of this Note begins by examining the background of the VRA. In Part I, this Note will briefly summarize the Act’s relationship with the Fifteenth Amendment and the circumstances that prompted its enactment, and detail the development of both section 2 and section 5 of the Act, as they have been used to combat vote discrimination. Part I will also discuss recent Supreme Court decisions that have limited the strength of the Act and set the stage for an analysis of the Act’s inability to combat discriminatory districting.

Part II will highlight two shortcomings of the Act to …

The Enduring Challenges For Habeas Corpus, Diane P. Wood

Notre Dame Law Review

Habeas corpus law has not remained static during the half century since Judge Friendly wrote, but neither has it provided satisfactory answers to the problems that he highlighted in his article. Unfortunately, many of the changes—well intended as they were by the enactors and implementers— have done nothing but create endless hurdles, loops, and traps for potential users. Enormous resources are poured into this elusive remedy. The rule of law is not well served when people are told that they have a remedy, but in fact they do not. Far better to have truth-in-labeling, so that the cases that deserve …

Certification Comes Of Age: Reflections On The Past, Present, And Future Of Cooperative Judicial Federalism, Kenneth F. Ripple, Kari Anne Gallagher

Notre Dame Law Review

In 1995, the American Judicature Society (AJS) undertook a comprehensive survey of certification. This Article uses the AJS’s survey as a starting point to examine the development of certification over the past twenty-five years. Were the fears of its critics well founded, or have the federal and state judiciaries adapted to mitigate the shortcomings of certification? Has certification been a useful tool in allowing for development of state law by the state judiciary, or has it been an imposition on the judiciary of a coequal sovereign?

Beyond these questions, this Article also will look at how certification has expanded beyond …

Only Where Justified: Toward Limits And Explanatory Requirements For Nationwide Injunctions, Milan D. Smith Jr.

Notre Dame Law Review

In Part I of this Article, I discuss the existing law and current debates surrounding nationwide injunctions. I consider the origins of both the apparent recent surge in the issuance of nationwide injunctions and the apparent recent surge in skepticism concerning nationwide injunctions. In Part II, I analyze the potential justification for issuance of a nationwide injunction that I find most compelling, and on which basis I argue a court is well within the bounds of Article III notwithstanding the indirect benefits of such injunction to nonparties. In Part III, I consider three other sometimesasserted justifications that I argue courts …

Toward A More Apparent Approach To Considering The Admission Of Expert Testimony, Thomas D. Schroeder

Notre Dame Law Review

This Article highlights lingering confusion in the caselaw as to the proper standard for the trial court’s discharge of its gatekeeping role for the admission of expert testimony. The Article urges correction of the faulty application of Daubert’s admonition as to “shaky but admissible” evidence as a substitute for proper discharge of the trial court’s gatekeeper function under Rule 104(a). The Article concludes with several suggestions for trial and appellate courts to consider for better decisionmaking in discharging their duty to apply Rule 104(a)’s preponderance standard to the elements of Rule 702.

Adequate And Effective: Postconviction Relief Through Section 2255 And Intervening Changes In Law, Ethan D. Beck

Notre Dame Law Review

This Note begins in Part I by providing a general introduction to modern postconviction relief, with special attention to the interaction between habeas corpus petitions and the § 2255 motion that performs much of the work traditionally assigned to the habeas writ. Section I.A begins to describe the debate in the federal circuit courts over the proper scope of the clause of § 2255 with which this Note is primarily concerned, the so-called “savings clause” of § 2255(e). Section I.B relates the importance of correctly construing the savings clause, as well as the dangers of a split in circuit interpretation …

"Of Substantial Religious Importance": A Case For A Deferential Approach To The Ministerial Exception, Allison H. Pope

Notre Dame Law Review

This Note argues that, in order to remain consistent with the Religion Clauses’ protection of religious autonomy, civil courts must defer to the religious group’s determination of which of its employees play a role “of substantial religious importance” within the organization in carrying out its religious mission under its tenets, and are therefore “ministers,” rather than investigate and make that determination themselves. Part I provides background information on the First Amendment and an overview of the circuit court and Supreme Court decisions that laid the foundation for, built, adopted, and applied the ministerial exception as described in Hosanna-Tabor. Part …

A Different Kind Of Prisoner's Dilemma: The Right To The Free Exercise Of Religion For Incarcerated Persons, Daniel T. Judge

Notre Dame Law Review

Part I will lay the foundation for the constitutional right to freedom of religion in the United States. It will explain how the Framers understood the right in the lead up to, and at the time of, the ratification of the Free Exercise Clause as part of the Bill of Rights. Part I will also address more modern advances in religious liberty protections for prisoners before discussing two recent milestones: the Religious Land Use and Institutionalized Persons Act and the Supreme Court’s decision in Holt v. Hobbs. Part II addresses the right to freedom of religion internationally. It begins …

Live Chat With Marcus Cole, Marcus Cole, Lou Nanni

2019–Present: G. Marcus Cole

Jun 17, 2020

Join G. Marcus Cole, the Joseph A. Matson Dean of Notre Dame Law School, for a live chat about current events and his vision for new initiatives at the Law School.

Dean G. Marcus Cole: 'I Am George Floyd. Except, I Can Breathe. And I Can Do Something.', Marcus Cole

2019–Present: G. Marcus Cole

Dean Marcus Cole makes a passionate statement regarding racial violence. He recounts his childhood memories and outlines the three steps he is taking to restore the vision of Father Hesburgh's original vision for Notre Dame Law School.

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Modernity And The Law: A Late Twentieth Century View, Robert P. Burns

Notre Dame Journal of International & Comparative Law

This Article explores Roberto Unger’s understanding of the specific significance that modernity has for law. It provides an account of the distinctions among customary law, bureaucratic law, the modern liberal rule of law ideal, and the unraveling of the rule of law in postliberal societies. It compares his views with those of other major theorists of modernity and with legal theorists. Finally, it discusses his speculations about then future developments and the relationship between central institutional and philosophical issues.