Law Commons^™

The Judicial Reforms Of 1937, Barry Cushman

Journal Articles

The literature on reform of the federal courts in 1937 understandably focuses on the history and consequences of President Franklin D. Roosevelt’s ill-fated proposal to increase the membership of the Supreme Court. A series of decisions declaring various components of the New Deal unconstitutional had persuaded Roosevelt and some of his advisors that the best way out of the impasse was to enlarge the number of justiceships and to appoint to the new positions jurists who would be “dependable” supporters of the Administration’s program. Yet Roosevelt and congressional Democrats also were deeply troubled by what they perceived as judicial obstruction …

Reckoning With Adjudication's Exceptionalism Norm, Emily S. Bremer

Journal Articles

Unlike rulemaking and judicial review, administrative adjudication is governed by a norm of exceptionalism. Agencies rarely adjudicate according to the Administrative Procedure Act’s formal adjudication provisions, and the statute has little role in defining informal adjudication or specifying its minimum procedural requirements. Due process has almost nothing to say about the matter.

The result is that there are few uniform, cross-cutting procedural requirements in adjudication, and most hearings are conducted using procedures tailored for individual agencies or programs. This Article explores the benefits and costs of adjudication’s exceptionalism norm, an analysis that implicates the familiar tension between uniformity and specialization …

Damages For Privileged Harms, Stephen Yelderman

Journal Articles

The law often permits substantial harms without liability. Once liability is triggered, compensatory damages require a defendant to pay for the harm caused by his wrongful conduct. But there is significant theoretical and doctrinal ambiguity in how compensatory damages should account for the harm that the defendant could have caused without incurring liability in the first place. These harms are “privileged,” in the sense that the defendant would have been free to impose them in a counterfactual universe in which he complied with the substantive law. Having transgressed that law, he is now responsible for damages, but the question is …

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

Journal Articles

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 …

Avoiding Judicial Discipline, Veronica Root Martinez

Journal Articles

Over the past several years, several high-profile complaints have been levied against Article III judges alleging improper conduct. Many of these complaints, however, were dismissed without investigation after the judge in question removed themselves from the jurisdiction of the circuit’s judicial council—oftentimes through retirement and once through elevation to the Supreme Court. When judges—the literal arbiters of justice within American society—are able to elude oversight of their own potential misconduct, it puts the legitimacy of the judiciary and rule of law in jeopardy.

This Essay argues that it is imperative that mechanisms are adopted that will ensure investigations into judicial …

Forgotten Borrowers: Protecting Private Student Loan Borrowers Through State Law, Judith Fox

Journal Articles

Private student loan borrowers arguably have the fewest protections of any users of credit in the United States. In a scarcely debated amendment to federal bankruptcy law, in 2005 private student lenders gained the same protections against discharge previously afforded to federal student lenders. Yet, private student loan borrowers received none of the rights available to federal student loan borrowers. These include income-driven repayment, relief from repayment on disability, loan discharge for fraud or closed schools, and public service loan forgiveness. Private student loan borrowers thus have neither the bankruptcy protections afforded to non-student loan debtors nor the repayment and …

Communicating Punishment, Marah Stith Mcleod

Journal Articles

Does it matter whether convicted offenders understand why they are being punished? In the death penalty context, the Supreme Court has said yes; a prisoner who cannot understand the state's reasons for imposing a death sentence may not be executed. Outside of capital punishment, the answer is still open. This Article begins to fill that gap, focusing on why and how states should help all offenders make sense of their sanctions, whether imposed for retribution, for deterrence, for incapacitation, or for rehabilitation.

Judges today sometimes try to explain sentences to criminal offenders so that they know the purposes of their …

New Technologies And The Evolution Of Tax Compliance, James Alm, Joyce Beebe, Michael S. Kirsch, Omri Marian, Jay A. Soled

Journal Articles

Improving tax compliance is a common goal of governments worldwide. The United States is no exception. The size of the nation's "tax gap" - or the difference between what taxpayers pay in taxes in a timely manner and what they should pay if they fully complied with the tax laws - is hundreds of billions of dollars annually, significantly depriving the nation of much-needed revenue.

This paper explores the mixed effects of technological advancements on tax compliance - and, thus, its counterpart, tax noncompliance. On the one hand, technological advances have largely eradicated many of the commonplace tax-noncompliance techniques that …

Restraining Judicial Application Of The "Safe Harbor" Provision In The Electoral Count Act, Derek T. Muller

Journal Articles

The Electoral Count Act of 1887, as codified in part at 3 U.S.C. § 5, includes a "safe harbor" for states to resolve disputes in their choices of presidential electors. Congress will treat as "conclusive" a "determination" about "any controversy or contest concerning the appointment" of presidential electors, if that determination is made "at least six days" before the time the electors are to meet. This is a rule governing how Congress handles "the counting of electoral votes as provided in the Constitution."

It is not a judicially-enforceable rule for courts to heed. And it is a rule that state …

Governing Elections Without Law, Derek T. Muller

Journal Articles

From the Article

The field of election law, unsurprisingly, focuses on law. But Professor Rick Hasen's book Election Meltdown rightly highlights that law can only take us so far in governing elections. As we think about the problems that persist in our elections, Professor Hasen moves us to think about long-term reforms, which are the best and perhaps only ways to respond to some of our elections' short-term perils. Some of his proposed reforms offer new legal frameworks. But I want to focus on those nonlegal reforms that work alongside the law - places where the law simply runs out, …

Brnovich V. Dnc: Election Litigation Migrates From Federal Courts To The Political Process, Derek T. Muller

Journal Articles

We are in a time of public skepticism over elections. The losing side doubts the fairness of the outcome, attributing the loss to suppression, fraud, foreign influence, or late-breaking changes to laws—some “true reason” outside the legitimate political process why a preferred candidate failed. The winning side is a sour contest or a sore loser away from doubting the legitimacy of the election.

It’s hard to tell whether the sharp rise in litigation over elections is the cause or the effect. Major political parties are spending more money than ever on lawyers and litigation in federal elections, from $7.5 million …

Celebrating The Work Of Professor Bob Cochran: An Introduction, Derek T. Muller

Journal Articles

The broad and deep scope of Professor Bob Cochran's work has influenced many legal scholars over the last several decades, and it will continue to shape how we think about law, ethics, and religion for decades to come. Indeed, his co-edited volume Christian Perspectives on Legal Thought stands as the first among many efforts to do just that. This special issue of the Pepperdine Law Review celebrates that extensive and impressive body of work. And the articles here, too, emphasize that this scholarship extends beyond the concerns of this life and into concerns of the life to come.

Sacred Places Of Notre Dame: Kresge Law Library Main Reading Room, Marcus Cole

2019–Present: G. Marcus Cole

Dec 19, 2019

Today our journey brings us to the Main Reading Room in the Kresge Law Library where the dean of the Law School invites us to express gratitude in this Advent season. go.nd.edu/SacredPlaces.

His Siblings - A Conversation With Marcus Cole, Marcus Cole

2019–Present: G. Marcus Cole

Dec 16, 2019

G. Marcus Cole is the Joseph A. Matson Dean and Professor of Law at Notre Dame Law School.

He was appointed by University President Rev. John I. Jenkins, C.S.C., and began his term on July 1, 2019. He is the 11th dean in the history of Notre Dame Law School.

Favorite Spot On Campus - A Conversation With Marcus Cole, Marcus Cole

2019–Present: G. Marcus Cole

Dec 16, 2019

G. Marcus Cole is the Joseph A. Matson Dean and Professor of Law at Notre Dame Law School.

He was appointed by University President Rev. John I. Jenkins, C.S.C., and began his term on July 1, 2019. He is the 11th dean in the history of Notre Dame Law School.

The World Doesn't Understand - A Conversation With Marcus Cole, Marcus Cole

2019–Present: G. Marcus Cole

G. Marcus Cole is the Joseph A. Matson Dean and Professor of Law at Notre Dame Law School.

He was appointed by University President Rev. John I. Jenkins, C.S.C., and began his term on July 1, 2019. He is the 11th dean in the history of Notre Dame Law School.

Son’S Reaction To Taking Notre Dame Job - A Conversation With Marcus Cole, Marcus Cole

2019–Present: G. Marcus Cole

Dec 16, 2019

G. Marcus Cole is the Joseph A. Matson Dean and Professor of Law at Notre Dame Law School.

He was appointed by University President Rev. John I. Jenkins, C.S.C., and began his term on July 1, 2019. He is the 11th dean in the history of Notre Dame Law School.

Hope For Nd Law - A Conversation With Marcus Cole, Marcus Cole

2019–Present: G. Marcus Cole

Dec 16, 2019

G. Marcus Cole is the Joseph A. Matson Dean and Professor of Law at Notre Dame Law School.

He was appointed by University President Rev. John I. Jenkins, C.S.C., and began his term on July 1, 2019. He is the 11th dean in the history of Notre Dame Law School.

How Notre Dame Happened - A Conversation With Marcus Cole, Marcus Cole

2019–Present: G. Marcus Cole

Dec 16, 2019

G. Marcus Cole is the Joseph A. Matson Dean and Professor of Law at Notre Dame Law School.

He was appointed by University President Rev. John I. Jenkins, C.S.C., and began his term on July 1, 2019. He is the 11th dean in the history of Notre Dame Law School.

Preparing For Law School - A Conversation With Marcus Cole, Marcus Cole

2019–Present: G. Marcus Cole

Dec 16, 2019

G. Marcus Cole is the Joseph A. Matson Dean and Professor of Law at Notre Dame Law School.

He was appointed by University President Rev. John I. Jenkins, C.S.C., and began his term on July 1, 2019. He is the 11th dean in the history of Notre Dame Law School.

The Hair - A Conversation With Marcus Cole, Marcus Cole

2019–Present: G. Marcus Cole

Dec 16, 2019

G. Marcus Cole is the Joseph A. Matson Dean and Professor of Law at Notre Dame Law School.

He was appointed by University President Rev. John I. Jenkins, C.S.C., and began his term on July 1, 2019. He is the 11th dean in the history of Notre Dame Law School.

Law Clerk Then Jr. Associate - A Conversation With Marcus Cole, Marcus Cole

2019–Present: G. Marcus Cole

Dec 16, 2019

G. Marcus Cole is the Joseph A. Matson Dean and Professor of Law at Notre Dame Law School.

He was appointed by University President Rev. John I. Jenkins, C.S.C., and began his term on July 1, 2019. He is the 11th dean in the history of Notre Dame Law School.

Meeting His Wife - A Conversation With Marcus Cole, Marcus Cole

2019–Present: G. Marcus Cole

G. Marcus Cole is the Joseph A. Matson Dean and Professor of Law at Notre Dame Law School.

He was appointed by University President Rev. John I. Jenkins, C.S.C., and began his term on July 1, 2019. He is the 11th dean in the history of Notre Dame Law School.

The Love For Notre Dame - A Conversation With Marcus Cole, Marcus Cole

2019–Present: G. Marcus Cole

G. Marcus Cole is the Joseph A. Matson Dean and Professor of Law at Notre Dame Law School.

He was appointed by University President Rev. John I. Jenkins, C.S.C., and began his term on July 1, 2019. He is the 11th dean in the history of Notre Dame Law School.

His Mom & Dad - A Conversation With Marcus Cole, Marcus Cole

2019–Present: G. Marcus Cole

Dec 16, 2019

G. Marcus Cole is the Joseph A. Matson Dean and Professor of Law at Notre Dame Law School.

He was appointed by University President Rev. John I. Jenkins, C.S.C., and began his term on July 1, 2019. He is the 11th dean in the history of Notre Dame Law School.

Be Someone’S Miracle Today - A Conversation With Marcus Cole, Marcus Cole

2019–Present: G. Marcus Cole

Dec 16, 2019

G. Marcus Cole is the Joseph A. Matson Dean and Professor of Law at Notre Dame Law School.

He was appointed by University President Rev. John I. Jenkins, C.S.C., and began his term on July 1, 2019. He is the 11th dean in the history of Notre Dame Law School.

How His First Job Shaped Him - A Conversation With Marcus Cole, Marcus Cole

2019–Present: G. Marcus Cole

Dec 16, 2019

G. Marcus Cole is the Joseph A. Matson Dean and Professor of Law at Notre Dame Law School.

He was appointed by University President Rev. John I. Jenkins, C.S.C., and began his term on July 1, 2019. He is the 11th dean in the history of Notre Dame Law School.

Stanford Law - A Conversation With Marcus Cole, Marcus Cole

2019–Present: G. Marcus Cole

G. Marcus Cole is the Joseph A. Matson Dean and Professor of Law at Notre Dame Law School.

He was appointed by University President Rev. John I. Jenkins, C.S.C., and began his term on July 1, 2019. He is the 11th dean in the history of Notre Dame Law School.

Power Of Modern Prayer - A Conversation With Marcus Cole, Marcus Cole

2019–Present: G. Marcus Cole

Dec 16, 2019

G. Marcus Cole is the Joseph A. Matson Dean and Professor of Law at Notre Dame Law School.

He was appointed by University President Rev. John I. Jenkins, C.S.C., and began his term on July 1, 2019. He is the 11th dean in the history of Notre Dame Law School.

My Domer Brother And Me - A Conversation With Marcus Cole, Marcus Cole

2019–Present: G. Marcus Cole

Dec 16, 2019

G. Marcus Cole is the Joseph A. Matson Dean and Professor of Law at Notre Dame Law School.

He was appointed by University President Rev. John I. Jenkins, C.S.C., and began his term on July 1, 2019. He is the 11th dean in the history of Notre Dame Law School.