Law Commons^™

A Second Chance On Earth: Understanding The Selection Process Of The Judges Of The Colombian Special Jurisdiction For Peace, Santiago Pardo Rodríguez

Notre Dame Journal of International & Comparative Law

For over fifty years, Colombia has faced a bloody and cruel civil conflict. Some of the most conservative studies have estimated that the total death toll of the war may be 220,000. The weight of this number heavily lies on the civilian population. It is estimated that around 81% of those killed in the conflict are non-combatant civilians. This represents, according to the data collected by the government’s Center for National Memory, around 180,000 civilian victims. In other words, as a civilian, the probability of being a victim in the Colombian conflict was nine times higher than a military or …

Masthead

Notre Dame Journal of International & Comparative Law

No abstract provided.

Challenges To, And Manifesto For, Fact-Finding In A Time Of Disinformation, Agnés Callamard

Notre Dame Journal of International & Comparative Law

Liberal and democratic values are in jeopardy, as is the rules-based international system and the norms it embodies, both being subject to multiple attacks that, once taboo, now, quite to the contrary, are both claimed and carried out with pride. This Article assesses the current human rights environment from the perspective of a United Nations factfinder. The impact of technological advancement on the human rights framework and the process of evidence-gathering is discussed, particularly regarding the spread of misinformation. The Article concludes with a manifesto for fact-finding as a pathway to knowledge and justice.

The Rise Of Hybrid Warfare, Waseem Ahmad Qureshi

Notre Dame Journal of International & Comparative Law

In the twenty-first century, wars are not declared or waged conventionally; instead, conflicts are instigated by clandestine agents using cyber tools, information operations, NGOs, nonstate actors, economic tools, propaganda, ambiguity, terrorism, and insurgency or rebel movements. In hybrid warfare, the lines between peacetime and wartime and between combatants and civilians are blurred. Further, systemic aggression is imposed on a targeted state using gray zones, nonlinear warfare, unrestricted warfare, unconventional warfare, and color revolutions to avoid attribution and possible retribution for the aggression. Hybrid warfare employs a wide array of power tools, ranging from political, economic, military, and civil to informational. …

Legal System Network Effects And Global Legal Development, David C. Donald

Notre Dame Journal of International & Comparative Law

Law originates in local environments, yet can be transmitted globally or over time to new contexts and foreign or future users. At its origin, law arises in response to social needs, but once formalized it takes on a semantic life of its own in a network of users. A rule created in response to a random New York plaintiff could—with sufficient popularity—end up as the standard norm applied globally, regardless of its underlying suitability for specific local needs.

To better understand the consequence of these legal system network effects on global legal development, this Article applies Klausner’s network theory of …

Letter From The Editor, Brad A. Rocheville

Notre Dame Journal of International & Comparative Law

No abstract provided.

International "Constitutions" And Comparative Constitutional Law, Michael Da Silva

Notre Dame Journal of International & Comparative Law

Many legal scholars and jurists see a particular document or a collection of documents as a means of constitutionalizing international law. The Charter of the United Nations is a prime example. Based on this, comparisons are made between international law and domestic constitutional orders, and these comparisons are sometimes used to decide cases. However, there is reason to question whether the international legal order has enough features of domestic constitutional orders to justify judicial comparison between the international legal order and domestic constitutional orders. The ongoing constitutionalization process is unlikely to produce an international legal order with sufficiently similar features …

Note: Building Blocks Of A Fundamental Right: A Thought Experiment On The Constitutional Right To A Livable Climate, Melanie Hess

Notre Dame Journal on Emerging Technologies

When civil rights lawyers sought to overturn Plessy v. Ferguson in the years leading up to Brown v. Board of Education, they faced a history of institutionalized segregation and inequality, constitutional acceptance of the “separate but equal” doctrine, and sharp social divisions on the issue. Other landmark cases of rights recognition, such as Obergefell v. Hodges and Roe v. Wade, similarly built upon years of evolution in law, precedent, and social opinion that made them inconceivable before their time. Early versions of the litigation strategies envisioning these judgments might have been tentative and vague, lacking in factual, legal, …

Losing The Battle Against Individual Infringers, Copyright Holders Set Their Sights On Internet Service Providers Once Again, Michael E. Benson

Notre Dame Journal on Emerging Technologies

This paper argues that, as a result of the courts limiting copyright holders from pursuing alleged individual infringers, that rights holders will once again target intermediaries, specifically ISPs, under a theory of secondary liability. Further, this paper comments on the renewed possibility of copyright holders successfully holding ISPs liable for secondary infringement, as copyright holders have been unable to do in the past. Part I lays out the main issues that copyright holders face in pursuing alleged individual online infringers and in pursuing the intermediaries that facilitate the alleged online infringement. Part II discusses a series of cases that weakened …

Preventing The Corruption Of Healthcare Algorithms, Philip M. Nichols

Notre Dame Journal on Emerging Technologies

The intersection of technology and healthcare will radically change the provision of healthcare services. The full extent of the changes cannot be known now, but the direction is clear: collection of voluminous data and tools powerful enough to analyze that data will facilitate the design of algorithms that will enable machines to make important decisions regarding diagnoses and treatments. In addition to the possible benefits, policymakers and scholars have focused on issues of privacy and potential bias. The potential for corruption of the design of healthcare algorithms has been ignored, but the potential for corruption is real and dangerous. This …

The Third Wave Of Electrification: A Normative Tool Against Climate Change​, Elizabeth L. Adams

Notre Dame Journal on Emerging Technologies

This article posits that the United States is now entering a third wave of electrification, one where we understand electricity not only as a universal service, but also as a mechanism for positive societal outcomes, namely the transition to a lower carbon future.

Part I evaluates the first two waves of electrification, starting with the introduction of electricity as a consumer product and transitioning to electrification as a basic right. Part II discusses the American regulatory framework which provides for government oversight of areas deemed to be “of the public interest.” Electric public utilities have participated in and been shaped …

The New Nuclear? Small Modular Reactors And The Future Of Nuclear, Bruce R. Huber

Notre Dame Journal on Emerging Technologies

This article explores Small Modular Reactors, SMRs. It begins by explaining the regulatory and economic structure of the electricity sector in the United States. It then describes the current state of nuclear power before examining SMRs in particular—how they differ from conventional nuclear reactors, what regulatory issues they will confront, and what factors will most directly shape their long-term potential.

175th University Of Notre Dame Commencement Program, University Of Notre Dame

Commencement Programs

The Commencement Program includes

• Doctoral Degrees
• Master Degrees
• Mendoza College of Business Master Degrees
• School of Architecture Master Degrees
• Law School
• College of Arts and Letters
• College of Science
• College of Engineering
• Mendoza College of Business Undergraduates
• School of Architecture Undergraduate Degrees
• Valedictorian Candidates
• 2020 Emeriti Faculty
• Honor Socities
• Awards and Prizes

From First Steps To Second Chances: Addressing Mass Incarceration In State Prisons, Molly Connor

Notre Dame Law Review

In order to address mass incarceration meaningfully, Congress must pass legislation aimed at reducing state prison populations. The legislation’s name (the First Step Act) suggests there will be follow-up legislation—that Congress’s end goal has yet to be fully realized. This Note explores the details of the First Step Act with an eye toward drafting the “Second Step Act” in a way that adequately addresses the root causes of mass incarceration. In Part I, this Note discusses the events leading up to the passage of the First Step Act and its key provisions addressing sentencing reform and rehabilitative programming. Part II …

Does Docket Size Matter? Revisiting Empirical Accounts Of The Supreme Court's Incredibly Shrinking Docket, Michael Heise, Martin T. Wells, Dawn M. Chutkow

Notre Dame Law Review

Drawing on data from every Supreme Court Term between 1940 and 2017, this Article revisits, updates, and expands prior empirical work by Ryan Owens and David Simon (2012) finding that ideological, contextual, and institutional factors contributed to the Court’s declining docket. This Article advances Owens and Simon’s work in three ways: broadening the scope of the study by including nine additional Court Terms (through 2017), adding alternative ideological and nonideological variables into the model, and considering alternative model specifications. What emerges from this update and expansion, however, is less clarity and more granularity and complexity. While Owens and Simon emphasized …

The Needle And The Damage Done: Mitchell V. Wisconsin'S Sweeping Rule For Warrantless Blood Draws On Unconscious Dui Suspects, Dyllan Taxman

Notre Dame Law Review Reflection

In a normal year, the annual death toll from drunk driving accidents in the United States will roughly equal the total number of victims of the September 11th terrorist attacks and service members killed in the War on Terror combined. And while every state has enacted increasingly progressive laws to prevent and punish driving under the influence (DUI), episodes of drunk driving remain consistent year to year and less than one percent of self-reported drunk drivers are arrested. Drunken and drugged driving is, both in lay terms and legally speaking, a compelling public issue. But the Fourth Amendment of the …

Faith, Law, And Love: Peg Brinig's Legacy, Stephanos Bibas

Notre Dame Law Review

The central question in Peg Brinig’s work is how the law can help intimate associations to raise healthy kids. She pursues this theme through a variety of inquiries, ranging from parochial schools in big-city neighborhoods to covenant-marriage laws in Louisiana. Her answers depend on context, varying with how close each social actor or institution is to the process of raising children. But nearly all her recommendations seek to foster permanent, loving, involved social environments.

Following Brinig’s lead, I’ll celebrate her work by highlighting some of the answers she offers in three different social contexts. In Part I, I’ll explore her …

The Invisible Prison: Pathways And Prevention, Margaret F. Brinig, Marsha Garrison

Notre Dame Law Review

In this Article, we propose a new strategy for curbing crime and delinquency and demonstrate the inadequacy of current reform efforts. Our analysis relies on our own, original research involving a large, multigenerational sample of unmarried fathers from a Rust Belt region of the United States, as well as the conclusions of earlier researchers.

Our own research data are unusual in that they are holistic and multigenerational: the court-based record system we utilized for data collection provided detailed information on child maltreatment, juvenile status and delinquency charges, child support, parenting time, orders of protection, and residential mobility for focal children …

A Consumer Guide To Empirical Family Law, June Carbone

Notre Dame Law Review

This Article will consider the framework for empirical work on family law, arguing that the failure to ask more sophisticated questions at the beginning of the research has limited its effectiveness. In this sense, Professor Peg Brinig’s work stands out for the creativity of the questions she has asked, her exploration of underutilized databases, and her work’s potential to serve as a foundation for a new paradigm for the integration of empirical work into family law theory.

This Article will discuss the way that theory—and the creation of discourses associated with it—informs empirical research. First, it will maintain that the …

Stare Decisis And The Supreme Court(S): What States Can Learn From Gamble, Zachary B. Pohlman

Notre Dame Law Review

While almost all questions before the Supreme Court require statutory or constitutional interpretation, state courts of last resort occupy a unique place in the American judicial landscape. As common-law courts, state supreme courts are empowered to develop common-law doctrines in addition to interpreting democratically enacted texts. This Note argues that these two distinct state court functions—interpretation of statutes and constitutions, and common-law judging—call for two distinct approaches to stare decisis, a distinction that is often muddied in practice. Justice Thomas’s concurrence in Gamble v. United States provides the framework for each approach, a framework based on the genesis and development …

The Place Of Empirical Studies, F.H. Buckley

Notre Dame Law Review

It was chance that brought Peg Brinig to George Mason University School of Law, and curiosity that took her to a law-and-economics and then to empirical research. She realized that only the curious would be able to keep up to new things, and that law teaching, not journalism, was the profession of the curious.

At the time, it took not only curiosity, but also a certain measure of courage to embark on law and economics. Traditional legal scholars correctly surmised that it would shake up the discipline, and that is never a pleasant experience. Conservatives who were fond of saying …

In Defense Of Empiricism In Family Law, Elizabeth S. Scott

Notre Dame Law Review

It is fitting to include an essay defending the application of empirical research to family law and policy in a symposium honoring the scholarly career of Peg Brinig, who is probably the leading empiricist working in family law. While such a defense might seem unnecessary, given the expanding role of behavioral, social, and biological research in shaping the regulation of children and families, prominent scholars recently have raised concerns about the trend toward reliance on empirical science in this field. A part of the criticism is directed at the quality of the science itself and at the lack of sophistication …

The Institutional Economics Of Marriage: A Reinterpretation Of Margaret Brinig's Contribution To Family Law, Douglas W. Allen

Notre Dame Law Review

Margaret (Peg) Brinig has made a massive contribution to family law over the course of the past thirty-five years. Spanning the two fields of economics and law, her views have evolved over time to ones that see family as a matter of covenant. The concept of a covenant is mostly unknown in the modern secular world and is absent in economics. Without (hopefully) changing Brinig’s meaning, I reinterpret her work and argue that her concept of a covenant is equivalent to the economist’s understanding of an institution. The goal of reinterpreting her work in light of institutional economics is to …

Property Rights In Children, Barry E. Adler, Alexis A. Alvarez

Notre Dame Law Review

In 1978, Dr. Elisabeth Landes and then-Professor, later-Judge Richard Posner, published The Economics of the Baby Shortage. The article openly discussed how economic analysis can address the allocation of babies available for adoption. The ideas expressed in the article were widely denounced as an inhumane commodification of children, something tolerable only in the twisted minds of academic authors. Despite the backlash, an odd thing happened in the more than four decades since Landes and Posner wrote on this topic: their ideas began to take hold. Today, almost all states in the United States permit, in some form, the contractual …

Understanding Violent-Crime Recidivism, J.J. Prescott, Benjamin Pyle, Sonja B. Starr

Notre Dame Law Review

People convicted of violent crimes constitute a majority of the imprisoned population but are generally ignored by existing policies aimed at reducing mass incarceration. Serious efforts to shrink the large footprint of the prison system will need to recognize this fact. This point is especially pressing at the time of this writing, as states and the federal system consider large-scale prison releases motivated by the COVID-19 pandemic. Those convicted of violent crimes constitute a large majority of older prisoners, who are extremely vulnerable to the spread of the virus behind bars. Excluding them from protective measures will deeply undermine those …

In Terrorem Clauses: Broad, Narrow, Or Both?, Evan J. Shaheen

Notre Dame Law Review

While the idea of the “carrot and stick” seems simple in theory, in terrorem clauses are governed by state law, with their application varying in large part by jurisdiction. Nevertheless, this Note seeks to identify some of the broad principles on which many in terrorem clauses rely, while also delineating several of the different state law approaches thereto. It does this by describing some of the potential problems with in terrorem clauses and posing potential solutions in the context of a variety of state law jurisprudence.

This Note will first address what will be defined as the “puppet problem.” By …

Further Harm And Harassment: The Cost Of Excess Process To Victims Of Sexual Violence On College Campuses, Hannah Walsh

Notre Dame Law Review

This Note argues that in employing the Mathews v. Eldridge test to formulate the constitutional minimum process necessary to satisfy the Fourteenth Amendment in a Title IX university disciplinary hearing, federal courts have failed to adequately weigh the inevitable harm to survivors that will result from allowing one accused of sexual assault to personally cross-examine their accuser as part of the government interest at stake. Furthermore, this Note contends that any institution permitting the practice of respondents cross-examining their complainants commits sex discrimination in violation of Title IX by directly inflicting harm on its female students. Part I will provide …

Concluding Rejoinder: The Art Of International Law And Altruism Of International Lawyers, Mary Ellen O'Connell

NDLS in the News

In the introductory essay, I sought to apply The Art of Law in the International Community as a response not only to military force and other ills but to the COVID-19 pandemic. Four colleagues have contributed on how they believe the book works and could work better. They have done so at a time of extraordinary challenge and in a spirit of generosity toward the goal we all seek, the flourishing of the created world.

Mmu: 04/27/20–05/03/20, Student Bar Association

Monday Morning Update

This Week @ NDLS

A Little Lagniappe (In Louisiana it means "a little something extra".)

• We made it—our last week of classes. I can’t believe this year is finally coming to a close. And by year I really mean this semester because it feels like it’s lasted a lifetime!
• It has been an honor and a privilege serving you all as SBA Secretary for the 2019- 2020 year, and I thank you for giving me the opportunity. But I am delighted to pass on the legacy to Madame Secretary 2020-2021, Krystal Moczygemba!

Questions, Comments, or Concerns?

• Have questions regarding the …

#Nlawproud: G. Marcus Cole (Jd ’93), Marcus Cole

2019–Present: G. Marcus Cole

Apr 23, 2020

G. Marcus Cole (JD ’93) grew up in the Terrace Village housing projects in Pittsburgh, Pennsylvania. And even though he’d never met any lawyers, his parents and teachers were certain that’s what he was destined to be. Cole is now in his dream job, guiding the next generation of lawyers as the Joseph A. Matson Dean and Professor of Law at Notre Dame Law School.