Law Commons^™

Mmu: 02/17/20–02/23/20, Student Bar Association

Monday Morning Update

This Week @ NDLS

• Daily Commons Menu Specials
• Daily Mass Schedule
• Morning Prayer with CLS
• Statutory Federalism and Criminal Law
• Transactional Law Team Chipotle Fundraiser
• 3L Prosecution/Public Defender Interview Skills Workshop
• First Gen Professionals Introduction to Networking
• Health Law to host Rob Gerberry
• Business Law Forum: A chat with Laura Stolpman, Associate General Counsel, Verizon
• IP Lecture Series: Melinda Henneberger
• CASA Event with Legal Voices for Children
• Professor Series: Negative Property Value
• Visit to Green Bridge Growers
• LAST DAY TO RSVP FOR THE ANNUAL NETWORKING COCKTAIL RECEPTION
• New Norms or the New Normal? A Perspective from Former White House Counsel …

Mmu: 02/10/20–02/16/20, Student Bar Association

Monday Morning Update

This Week @ NDLS

• GM Auto Workers' Strike
• Daily Commons Menu Specials
• Daily Mass Schedule
• Morning Prayer with CLS
• Renting Right
• The Landings (University Family Housing)
• Hot Cocoa Social
• Father Mike Committee Meetings
• SALDF: Volunteering at the Humane Society

General Announcements

• Service Opportunity for South Bend Center for the Homeless
• National Association of Women Lawyers Mid-Year Meeting in Chicago
• ITA Jurors Needed
• SBA Store Hours
• Student Job Opportunity w/ND Listens
• Legal Writing Center
• Volunteer Opportunity at Green Bridge Growers
• IDEA Center Student Connections
• Health & Wellness Center
• Notice to student visitors to Sinai Synagogue
• Advertise Law School Events on the …

Mmu: 02/03/20–02/09/20, Student Bar Association

Monday Morning Update

This Week @ NDLS

• Daily Commons Menu Specials
• Daily Mass Schedule
• Morning Prayer with CLS
• 7th Circuit Court of Appeals Federal Clerkship Discussion Panel
• Prosecution/Public Defender Interview Skills Workshop
• Fed Society and Constitutional Studies Present Data-Driven Originalism: The Rise of Corpus Linguistics
• Public Interest Interview Skills Workshop
• State of the Law School Address
• Responsible Prosecutors and the Role of a Judge
• Journal of Legislation Symposium - "Hot Topics in Immigration Law"

General Announcements

• Student Job Opportunity w/ND Listens!
• SBA Store Hours
• Legal Writing Center
• Volunteer Opportunity at Green Bridge Growers
• IDEA Center Student Connections
• Health & Wellness Center
• Notice to …

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

Notre Dame Lawyers Connect

Top Story: How women have shaped the judiciary?

Faculty Spotlight: Journal pays tribute to Thomas L. Shaffer

Alumni Spotlight: U.S. Senate confirms Bernard Jones

Nominations open for NDLA Board

Upcoming Events

Alumni Notes

• Sunny Hostin
• Nicolas Guzman
• Kenneth Prabucki

Letter From The Editor, Brad A. Rocheville

Notre Dame Journal of International & Comparative Law

No abstract provided.

Masthead

Notre Dame Journal of International & Comparative Law

No abstract provided.

Attribution And Other Conditions Of Lawful Countermeasures To Cyber Misconduct, Mary Ellen O'Connell

Notre Dame Journal of International & Comparative Law

State cyber misconduct is on the rise, and it can be difficult to differentiate between malicious governmental cyber conduct and active cyber defense. Though some argue that cyberspace is a law-free zone, offensive cyberattacks are almost always unlawful regardless of their purpose. This Article contends that international law can provide for legal boundaries in cyberspace and analogizes cyber misconduct to government actions such as espionage. So long as conditions provided by international law (such as notice, necessity, and proportionality) are met, countermeasures to malicious cyber operations are generally lawful. Cases of urgency may be an exception to this general rule …

Collective Countermeasures In Cyberspace, Jeff Kosseff

Notre Dame Journal of International & Comparative Law

The president of Estonia, Kersti Kaljulaid, has supported the use of collective countermeasures in response to cyberspace crimes. Collective countermeasures would allow an uninjured state to provide guidance or carry out countermeasures on behalf of another state. This Article advocates for collective countermeasures in cyberspace so long as the operations are carefully executed and subject to the same restrictions as individual countermeasures. This Article further finds for the following in favor of limited forms of collective countermeasures: (1) the highly interconnected nature of threats in cyberspace; (2) states with more sophisticated cyber capabilities can leverage for comparative advantages; (3) states …

An Extraterritorial Human Right To Cybersecurity, Ido Kilovaty

Notre Dame Journal of International & Comparative Law

Cybersecurity breaches have affected consumers and the landscape of politics globally. Legal developments have been reactive and incomprehensive. The fatal flaws of international law make it an ill-suited solution to these concerns because international law binds state actors and does not give individuals rights. International human rights law, however, provides the best solution because it does provide harmed individuals with rights and mechanisms to seek recourse. Cybersecurity relates to several key areas of human rights law and, therefore, its regulation is well suited to the existing international human rights regulatory scheme. This Article explores the possibility of using international human …

It’S Time To Turn On The Lights: The Necessary Steps For The Rural Electrification Of Sub-Saharan Africa, John Morris

Notre Dame Journal of International & Comparative Law

While each country in Africa is in a different state of electrification, this Note focuses on the nations of Tanzania and Kenya. Comparatively, in the First World, power generation was a gradual and non-linear process that was slow to perfect. This Note argues that the lack of rural electrification in sub-Saharan Africa will continue without a confluence of investment, support, and regulation. Renewable energy sources (such as solar, wind, and geothermal) seem promising, but none are without their own limitations. The use of mini-grids will play an important role in electricity access for sub-Saharan Africa. This Note advocates that the …

Domestic Law Responses To Transnational Cyberattacks And Other Online Harms: Internet Dreams Turned To Internet Nightmares And Back Again, Clive Walker, Ummi Hani Binti Masood

Notre Dame Journal of International & Comparative Law

Since its utilization has become widespread, the potential of the Internet has often been overshadowed by the harms it’s capable of bringing upon society. Regulation has not yet properly addressed the harms presented to individuals’ cybersecurity and the U.K. has focused and set objectives at a national security level, while ignoring the effects of attacks on individual citizens. This Article considers whether it is possible to create a domestic legal response to transnational cyberattacks and the appropriateness of law to address the threats, as they exist. The law must be efficient, effective, and fair, which are all aims it may …

Neutrality In The Modern World: Internet Regulation's Impact On Economics And Society, Sarah Deagostino

Notre Dame Journal of International & Comparative Law

In the United States, net neutrality laws prevented service providers from restricting open access to the Internet. In 2017, these laws were repealed and consumers became concerned that Internet providers would take advantage of them through blocking, throttling, and paid prioritization. The trend in the United States, from the rise of the telephone and wire transfer to the rise of the Internet, was toward facilitating access to the Internet for all citizens. This is intended to result in economic advantages for the country, and aid in the development of broadband Internet. Open access to the Internet was regarded as providing …

Mmu: 01/27/20–02/02/20, Student Bar Association

Monday Morning Update

This Week @ NDLS

• Daily Commons Menu Specials
• Daily Mass Schedule
• Morning Prayer with CLS
• Interview Skills Workshop
• Married & Engaged Law Student Organizational Meeting
• Public Interest Law Forum General Meeting
• Intellectual Property Law Society Introductory Meeting for the Semester
• London Law Program Information Sessions
• London Law Q&A Drop-in Session with Professor Addo
• Your Non-law Firm Job Search
• HLSA Spring Semester Meeting
• From Russia With Love: On Foreign Interference in Elections
• LGBTQ Students of Faith

General Announcements

• Student Job Opportunity w/ND Listens!
• SBA Store Hours
• Legal Writing Center
• Volunteer Opportunity at Green Bridge Growers
• IDEA Center Student Connections
• Health & …

Mmu: 01/20/20–01/26/20, Student Bar Association

Monday Morning Update

This Week @ NDLS

• Daily Commons Menu Specials
• Daily Mass Schedule
• Morning Prayer with CLS
• SBA Store Hours
• Changemakers Week
• Campus Launch: With Voice True, the Klau Center Archive on Race
• Research Assistant Information Session
• WLF Lunch: Intersectionality in the Midwest Suffrage Movement
• 2nd Amendment Rights for People of Color: A Conversation with Professor Smith
• Thomas Jefferson, Race, Slavery, and the Problem of American Nationhood
• How Women Have Shaped the Judiciary Panel Discussion
• How to Pursue a Public Interest Career with Equal Justice Works

General Announcements

• Student Job Opportunity w/ND Listens
• SBA Store Hours
• Health & Wellness Center
• Legal Writing …

The Killing Of Soleimani And International Law, Mary Ellen O'Connell

NDLS in the News

On 3 January, missiles launched from a United States Reaper drone struck two vehicles leaving Baghdad’s international airport. At least seven people died in the attack, including the commander of Iran’s Quds force, General Qassem Soleimani. On 5 January, Iranian Major General Hossein Dehghan, reported to be the military adviser to Iran’s Supreme Leader, gave an exclusive interview to CNN and said Iran “would retaliate directly against US ‘military sites.’”

The Moral Imperative Of Green Nuclear Energy Production, Don Howard

Notre Dame Journal on Emerging Technologies

A climate crisis is upon us. Human-caused global warming is already changing our planet's climate in dramatic ways, and the effects are forecast to become far worse by the end of the century without rapid and radical changes to the global energy economy and the other forms of human activity that generate CO2 and other greenhouse gases, such as methane. The ten hottest years on record have all occurred since 1998, with the past five years topping the list. We already see the disappearance of the arctic ice pack, massive glacial melting in Greenland, sea-level rise, massive wildfires in northern …

Note: Fracking Fluids: Regulatory Disclosure And Trade Secret Ingredients, Alison Ibendahl

Notre Dame Journal on Emerging Technologies

The Note reviews current law, policy, and politics that are part of the discussion around disclosing fracking fluid trade secrets. Part I of this paper provides a background of fracking, why it is valuable, and intellectual property regimes used by owners of fracking relating to intellectual property. Part II reviews the regulatory takings doctrine, trade secret law and the interaction between them. Current disclosure laws, the policy considerations of disclosure law, and political attitudes towards fracking are discussed in Part III. This review concludes with general comments on current disclosure and the potential changes to regulations.

Electric Load Flexibility Analysis For The Clean Energy Transition, Peter Alstone, Mary Ann Piette

Notre Dame Journal on Emerging Technologies

A clean energy transition on the electricity grid is underway with the addition of new renewable generation, improved capabilities for sensing and controls, and "distributed energy resources" (DER) that include efficiency, battery storage, flexible loads, and electrified heating and transportation. The complex interactions between these advances require new analytic techniques to support decisions by utilities, regulators, and enterprises developing and deploying new DER. In this paper, we describe an approach for estimating the potential of flexible loads (often also referred to as "demand response" (DR)) to contribute to the planning and operation of the grid. The analysis was developed in …

Moat Mentality: Onshore And Offshore Approaches To Wind Waking, K.K. Duvivier, Brendan T. Mooney

Notre Dame Journal on Emerging Technologies

Wind energy developers are becoming increasingly aware of the damaging impact of wakes from turbines. To deal with the issue on land, many terrestrial developers have adopted a "moat mentality," creating buffer zones around their wind plants' to protect them from neighboring wind developments. While these "moats" may protect the investment of a particular wind developer, they render large areas that could be generating electricity into unproductive waste zones. US offshore wind development is in its nascence. This article will explore ways that offshore wind developers are addressing waking issues and whether they can find more collaborative solutions to maximize …

Note: The Weakest Link In Greenhouse Gas Emissions Regulation: A Comparative Study Of Methane Waste Law In The United States, Vienna Bottomley

Notre Dame Journal on Emerging Technologies

In this comparative study, I will analyze the various methods employed by states for monitoring and curtailing methane leakage in comparison with approaches that have been employed at the federal level. I will juxtapose the regulatory regimes of Colorado, North Dakota, New York, Pennsylvania, New Mexico, and California with the Obama Administration methane leakage regulations, including the 2016 Bureau of Land Management (BLM) "methane waste rule" regulations that the Trump Administration formally rolled back in September 2018. Finally, I will consider what the failure of the Obama Administration methane leak regulations means for climate change law in the United States …

Foreword, Peter C. Burns

Notre Dame Journal on Emerging Technologies

There is still much work to do to ensure access to affordable, reliable, sustainable, and modern energy for all. Yet, we have made substantial progress in gaining a global understanding that using alternative energy sources will curb global warming and preserve Earth's resources. The hurdle of economic gain and political acceptance still remains a challenge. At the Center for Sustainable Energy at Notre Dame (ND Energy), we engage with faculty and associated researchers on these very issues and work to advance new technologies and energy systems in the hope of addressing these challenges and helping to attain the United Nations' …

On Tipping Points And Nudges: Review Of Cass Sunstein’S How Change Happens, Raymond H. Brescia

Notre Dame Journal of Law, Ethics & Public Policy

No abstract provided.

The Cynical Successes Of The Guantanamo Bay Military Commissions, G. Alex Sinha

Notre Dame Journal of Law, Ethics & Public Policy

No abstract provided.

The Third-Party Doctrine: Perpetuation By Privacy Policies, Courtney C. Seitz

Notre Dame Journal of Law, Ethics & Public Policy

No abstract provided.

The Demise Of The Cfaa In Data Scraping Cases, Jennie E. Christensen

Notre Dame Journal of Law, Ethics & Public Policy

No abstract provided.

Your Face Is A Commodity, Fiercely Contract Accordingly: Regulating The Capitalization Of Facial Recognition Technology Through Contract Law, Y. Amy Chen

Notre Dame Journal of Law, Ethics & Public Policy

No abstract provided.

Arbitrating The England Problem: Litigation, Private Ordering, And The Rise Of The Modern Economy, Christian R. Burset

Journal Articles

Legal scholars, historians, and social scientists have long puzzled over how England-with its apparently irrational common-law system-gave birth to the Industrial Revolution. One prominent solution has been to suggest that eighteenth-century merchants used arbitration and other forms of private ordering to sidestep England's defective legal system. This Article questions that story by offering a new account of how and why extralegal commercial arbitration declined in the early years of the Industrial Revolution. Until the middle of the eighteenth century, merchants could generally resolve their disputes without courts or lawyers. But that changed as new forms of lending arose, credit transactions …

Liberty In The Things Of God: The Christian Origins Of Religious Freedom, Gerard V. Bradley

Journal Articles

Liberty in the Things of God: The Christian Origins of Religious Freedom. By Robert Louis Wilken. New Haven, CT: Yale University Press, 2019. 191 pp. $26.00.

Yet the myth persists that secular philosophy rescued religious freedom from the unmerciful hands of the religious. The central ambition of Robert Wilken’s magisterial new book is to expose the myth as a false creation narrative. He shows brilliantly that religious liberty for persons and for communities has its origins in Christianity and not in the Enlightenment’s triumph over it. It might be hard to say what would constitute definitive proof of a proposition …

Therapeutic Jurisprudence, Paul R. Mchugh, Gerard V. Bradley

Journal Articles

Paul R. McHugh and Gerard V. Bradley expose the flawed reasoning of Bostock.

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

Journal Articles

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 …