Law Commons^™

The International Law Origins Of American Federalism, Anthony J. Bellia Jr., Bradford R. Clark

Journal Articles

Courts and commentators have long struggled to reconcile prominent federalism doctrines with the text of the Constitution. These doctrines include state sovereign immunity, the anticommandeering doctrine, and the equal sovereignty of the States. Supporters of such doctrines have generally relied on the history, structure, and purpose of the Constitution rather than its text. Critics have charged that the doctrines lack adequate support in the Constitution's text and are the product of improper judicial activism. This Article suggests a way to reconcile federalism and textualism by looking to a surprising source-international law. The Constitution contains numerous references to "States," and the …

A Parsimonious Equity?: Discussion Of Equity: Conscience Goes To Market, Samuel L. Bray

Journal Articles

Equity has always had enemies. As Professor Irit Samet notes in her agile and insightful new book, Equity: Conscience Goes to Market, these enemies have lodged two main complaints. One is that equity is not distinctive, and for that reason should be eliminated. The other is that equity is distinctive—and dangerous—and for that reason should be eliminated.

The Complexities Of Democracy, Development, And Human Rights In China's Belt And Road Initiative, Diane Desierto

Journal Articles

China's Belt and Road Initiative (BRI)-a dense network of China-funded multi-year infrastructure projects in over 65 countries from the Western Pacific to the Baltic Sea, collectively aiming to establish China's strategic "Maritime Belt" and "Silk Road" connectivity using an estimated range of USD$1 Trillion to USD$8 Trillion--is as unprecedented phenomenon in sovereign project financing and bilateral investment lending, since the United States' grant of USD $800 Billion for the Marshall Plan was for Europe's post World War II reconstruction. The scale, scope, and terms of BRI projects remain shrouded in relative opacity, with China as of this writing only incrementally …

China's Maritime Law Enforcement Activities In The South China Sea, Diane Desierto

Journal Articles

China, one of the territorial and maritime claimants of the South China Sea, declared in April 2020 that it had created two new administrative districts in the South China Sea:

Xisha district, covering the Paracel Islands and Macclesfield Bank, and Nansha district covering the Spartly [sic] Islands .... The new administrative districts are to be under the authority of the local government in Sansha, a city located on Woody Island which is administratively part of Hainan province. The Xisha district will be based in Sansha while the Nansha district will operate from Fiery Cross Reef in the Spratlys.

Sansha City …

Religious Freedom And The Churches: Contemporary Challenges In The United States Today, Richard W. Garnett

Journal Articles

A crucial, but often overlooked, dimension of the human and constitutional right to religious freedom is the autonomy of religious institutions, associations and societies with respect to matters of governance, doctrine, formation and membership. Although the Supreme Court of the United States has affirmed this autonomy in the context of American constitutional law, it is vulnerable, and even under threat, for a variety of reasons, including a general decline in the health of civil society and mediating associations and a crisis of confidence and authority caused by clerical sexual abuse and churches’ failure to respond to it.

The Communitarian Work And Vision(S) Of Robert Cochran (And Thomas Shaffer), Richard W. Garnett

Journal Articles

Professor Robert Cochran's work and thought were powerfully shaped by those of his friend, mentor, and teacher, the late Professor Thomas Shaffer, a towering figure in the religious lawyering movement. A leading theme in Shaffer's writing, one that has continued through and been developed in Cochran's, is "community." This Essay explores and unpacks this theme and highlights several ways that the idea of "community" functions in their vision of the lawyer 's role and vocation.

Neoclassical Administrative Law, Jeffrey A. Pojanowski

Journal Articles

This Article introduces an approach to administrative law that reconciles a more formalist, classical understanding of law and its supremacy with the contemporary administrative state. Courts adopting this approach, which I call “neoclassical administrative law,” are skeptical of judicial deference on questions of law, tend to give more leeway to agencies on questions of policy, and attend more closely to statutes governing administrative procedure than contemporary doctrine does. As a result, neoclassical administrative law finds a place for both legislative supremacy and the rule of law within the administrative state, without subordinating either of those central values to the other. …

An Economic Approach To Religious Exemptions, Stephanie H. Barclay

Journal Articles

Externalities caused by religious exemptions have been getting the spotlight again in light a case the U.S. Supreme Court will hear this term: Fulton v. City of Philadelphia. Some argue that religious individuals should be required to internalize the costs they impose on third parties and thus should be denied the right to practice that harmful behavior. These new progressive theories about harm trade on rhetoric and normative intuitions regarding externalities and costs. But curiously, these theories also largely ignore an influential theoretical movement that has studied externalities and costs for the last fifty years: law and economics.

This Article …

Untangling Entanglement, Stephanie H. Barclay

Journal Articles

The Court has increasingly signaled its interest in taking a more historical approach to the Establishment Clause. And in its recent American Legion decision, the Supreme Court strongly suggested that the three-prong Lemon test is essentially dead letter. Such a result would make sense for the first two prongs of the Lemon test about secular purpose and the effects. Many scholars have observed that these aspects of the prong are judicial creations far afield of the Establishment Clause history. But what of the entanglement prong of the test? If we rejected all applications of this prong of the analysis, would …

Against Fiduciary Constitutionalism, Samuel L. Bray, Paul B. Miller

Journal Articles

A growing body of scholarship draws connections between fiduciary law and the Constitution. In much of this literature, the Constitution is described as a fiduciary instrument that establishes fiduciary duties, not least for the President of the United States. This Article examines and critiques the claims of fiduciary constitutionalism. Although a range of arguments are made in this literature, there are common failings. Some of these involve a literalistic misreading of the works of leading political philosophers (e.g., Plato and Locke). Other failings involve fiduciary law—mistakes about how to identify fiduciary relationships, about the content and enforcement of fiduciary duties, …

The Comparative Legal Landscape Of Educational Pluralism, Nicole Stelle Garnett

Journal Articles

In the United States, debates about private and faith-based education tend to focus on questions about government funding: which kinds of schools should the government fund (and at what levels)? Should, for example, students be able to use public funds to attend privately operated schools? Faith-based schools? If so, what policy mechanisms should be used to fund private schools—vouchers, tax credits, direct transfer payments? How much funding should these schools receive? The same amount as public schools or less? As a historical matter, the focus on funding in the United States makes sense because only public (that is, government-operated) elementary …

The Professor As Institutional Entrepreneur, Roger P. Alford

Journal Articles

Law professors are all about ideas, and the creation of an institute, clinic, or center within a law school is the instantiation of an idea. Ideas embodied in law school institutions become crystallized in the fabric of a school, changing its culture, internalizing its values, and reflecting its priorities. Robert Cochran has helped to establish multiple institutes, centers, and clinics at Pepperdine Caruso Law School, and in so doing he has become the law school's great serial entrepreneur. The institutes Cochran helped to establish have become laboratories to give expression to his ideas about the relationship between faith, ethics, and …

Bring On The Pettifoggers: Revisiting The Ethics Rules, Civil Gideon, And The Role Of The Judiciary, Jodi Nafzger

Notre Dame Journal of Law, Ethics & Public Policy

No abstract provided.

Punishing Vandalism Correctly In An Access Economy, W.C. Bunting

Notre Dame Journal of Law, Ethics & Public Policy

No abstract provided.

Victim Impact Evidence In Capital Cases: Regulating The Admissibility Of Photographs And Videos In The Payne Era, Alexander H. Updegrove

Notre Dame Journal of Law, Ethics & Public Policy

No abstract provided.

The Last Testament Of Justice Scalia: On Aquinas And Law, Stefanus Hendrianto

Notre Dame Journal of Law, Ethics & Public Policy

No abstract provided.

Revitalizing The Implied Warranty Of Habitability, Serge Martinez

Notre Dame Journal of Law, Ethics & Public Policy

No abstract provided.

Human Dignity And The Doctrine Of Provocation: A New Approach, Roni Rosenberg

Notre Dame Journal of Law, Ethics & Public Policy

No abstract provided.

Elder Financial Abuse: Fiduciary Law And Economics, Ben Chen

Notre Dame Journal of Law, Ethics & Public Policy

No abstract provided.

Troubled Waters: Expansion Of The Michigan Public Trust Doctrine In An Era Of Increasing Pollution, Kathryn Zoller

Notre Dame Journal of Law, Ethics & Public Policy

No abstract provided.

Protection Or Suppression? Reevaluating The Constitutionality Of Voter Id Laws In Light Of New Empirical Evidence, Jared D. Michael

Notre Dame Journal of Law, Ethics & Public Policy

No abstract provided.

Nonprofit Organizations And Anti-Corruption Statutes: Incentives For Compliance, Elizabeth B. Coburn

Notre Dame Journal of Law, Ethics & Public Policy

No abstract provided.

A Statistical Overview On Data Privacy, Fang Liu

Notre Dame Journal of Law, Ethics & Public Policy

No abstract provided.

Charter School Bankruptcy Eligibility Under The “Governmental Unit” Exception, Parth M. Parikh

Notre Dame Journal of Law, Ethics & Public Policy

No abstract provided.

The Financial Crisis, Antiglobalism Fervor And Entrenchment: A Warning For The United States And United Kingdom, Michael Medved

Notre Dame Journal of Law, Ethics & Public Policy

No abstract provided.

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

Journal Articles

In this paper, 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, multi-generational 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 (the …

Promoting International Procedural Norms In Competition Law Enforcement, Roger P. Alford

Journal Articles

It is a pleasure to participate in the 2019 Kansas Law Review Symposium, "Antitrust Law and Policy in the 21st Century." Antitrust is once again a hot topic and discussion about how to effectively enforce the laws in a digital age is generating widespread attention. My focus will be on the topic of promoting fundamental due process in competition law investigation and enforcement. With competition authorities around the globe becoming increasingly more active, it is one of the most important topics on the antitrust agenda. And this year, we witnessed a watershed moment with the adoption of a new framework …

First Amendment “Harms”, Stephanie H. Barclay

Journal Articles

Refuting the unhelpful fixation on the mere presence of generic harm, this Article makes two important contributions, one descriptive and one normative. First, this Article carefully describes the nuanced ways that courts classify and weigh different types of harm, and it identifies three categories: (1) prohibited harms (meaning harms that are categorically impermissible); (2) probative harms (meaning relevant harms that can be balanced against other harms); and (3) inadmissible harms (meaning harms that are given no weight regardless of how severely or disproportionately they are experienced by third parties). This Article demonstrates how these categories of harm are not limited …

How To Approach Market Definition After Ohio V. American Express, Roger P. Alford

Journal Articles

Technological developments have introduced new methods of buying and selling goods and services. These advancements often times take the form of two-sided platforms. While these platforms increase overall social utility, they also present a host of challenges to antitrust enforcement. One such challenge is defining the appropriate market in cases involving actions that are not illegal per se. That task has been made more difficult with the Supreme Court’s recent decision in Ohio v. American Express Co. (“Amex”).2 Moving forward, one of the critical questions Amex presents is how to define the product market in the context of two-sided platforms.

Conscience And Justice In Equity: Comments On Equity: Conscience Goes To Market, Paul B. Miller

Journal Articles

This short essay introduces and engages several philosophical questions raised by Irit Samet’s Equity: Conscience Goes to Market. Amongst other things, it addresses questions going to: the proper scope of equity; the relationship between equity’s remedial and supplemental functions; whether, and if so, to what extent equity promotes compliance with moral obligations; what, if any, moral aims animate equitable intervention; and whether, and if so, how, equity is distinctively concerned with matters of conscience and “particular” justice. All the while, I express appreciation for Samet’s project while raising some doubts about her views on how law and equity divide labor …