Law Commons^™

The World’S Oldest Profession Needs New Answers, Ariana Zaimi

Notre Dame Journal of Law, Ethics & Public Policy

No abstract provided.

The Case For Climate Refugee Protection, Nicole Theriot

Notre Dame Journal of Law, Ethics & Public Policy

No abstract provided.

The Erie Scoop, Barry Cushman

Journal Articles

APRIL 25, 1938 WAS A BUSY DAY at the Supreme Court of the United States. The Court decided twelve cases by full opinion and six cases per curiam, granted certiorari in two cases and denied it in twenty-eight others, and denied two petitions for rehearing. The decision that received the most attention sustained a challenge to a directive of Secretary of Agriculture Henry A. Wallace setting maximum rates to be charged by commission men working at the Kansas City Stockyards. The Court found that the regulated parties had not been afforded a “full,” “fair and open hearing” before the rate …

Creating U.S. Catholicism, Gerard V. Bradley

Journal Articles

Reviewing, The World and Work of Father John J. Burke: A Mystic in Action by Douglas J. Slawson, St. Augustine's, 600 p, $36.

Human Rights Methodology For Clinical Instruction: Legal Theory And Interdisciplinary Practices To Realize Human Rights Outcomes, Diane Desierto

Journal Articles

The interdisciplinary fact-finding and analytical methodologies of global human rights law, when translated to experiential learning practices (e.g., in the form of human rights legal assessments that integrate international law with domestic law and inject rigorous plausibility evaluations of client claims applicable to global as well as domestic fora) can usefully enhance and expand United States law school clinical teaching practices and the transfer of practical lawyering skills. By teaching law students: (1) the wide range of available human rights factfinding and empirical tools; (2) the techniques for broad use and application of primary and secondary evidentiary sources; and (3) …

The Pathologies Of Revocation By Physical Act, Barry Cushman

Journal Articles

The power to revoke one’s will by physical act was enshrined in Anglo-American law in 1677 by the Statute of Frauds. It remains the law in Great Britain, in such developed Commonwealth countries as Canada, Australia, and New Zealand, and in each of the United States of America. Yet revocation by physical act creates numerous perplexities in the law, is badly out of phase with the law governing non-probate transfers, has become increasingly anomalous within the law of wills itself, and is in need of reform.

In a previous article, The Decline of Revocation by Physical Act, I documented …

Ndls Communicator: Week Of 12.16.24, Notre Dame Law School

NDLS Communicator

The Latest News

• ND Law Global Visiting Professors Bring International Expertise to the Classroom and Notre Dame Community
• Notre Dame Law School's Religious Liberty Clinic defends religious freedom through asylum
• Notre Dame Religious Liberty Clinic files amicus brief to support Indigenous efforts to protect sacred site in Texas
• Dean Cole offered a prayer for students as they began final exams.

Faculty News and Briefs

• On November 18, Jeff Pojanowski spoke at an event by the American Enterprise Institute and Catholic University on Professor Stephen Smith's book, Law's Quandary.
• Carter Snead's book, What it Means to be Human, was included in …

Mmu: 12/09/24–12/15/24, Student Bar Association

Monday Morning Update

This Week @ NDLS

Mass Times

Commons Daily Menu

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Ndls Communicator: Week Of 12.09.24, Notre Dame Law School

NDLS Communicator

Faculty News and Briefs

• Lloyd Mayer was a guest on the Unreasonable Podcast episode "How Religious Organizations Game The IRS".
• A.J. Bellia has published "Constitutional federalism and the nature of the Union" (with Brad Clark) which explains the origins of U.S. federalism and responds to a recent symposium on his work in the Journal of Constitutional History and to other commentators.
• Rick Garnett was quoted in America Magazine about President Biden's pardon of his son, Hunter Biden.
• This week Sam Bray is presenting a sketch for a book on equity and change at the Judicial Administration / Judicial Process Roundtable …

Hyperlocal Gift Economies Under The Duberstein Gift Standard, Nicolás R. Munsen

Notre Dame Law Review Reflection

Hyperlocal gift economies, such as those moderated by the “Buy Nothing Project,” have become increasingly popular in the United States and abroad within the last decade. Explicitly banning the buying, selling, trading, or bartering of goods and services, hyperlocal gift economies instead encourage local community members to give to each other out of their own abundance and without any expectation of return or obligation—in short, to give and receive gifts. But while members of these groups regard these transactions as gifts, it is unclear if the Internal Revenue Service would agree. The Internal Revenue Code’s definition of “gift” in I.R.C. …

The Cftc, Mqd, And Climate Change, Todd Phillips, Will Dobbs-Allsopp

Notre Dame Law Review Reflection

In June 2022, the Commodity Futures Trading Commission (CFTC) issued a request for information (RFI) “to better inform its understanding and oversight of climate-related financial risk as pertinent to the derivatives markets and underlying commodities markets.” The financial regulatory agency is one of several working to address climate-related risks present within the financial system. Given its unique role in regulating derivatives and overseeing commodity markets, the CFTC is working to ensure that the private sector may effectively use those products to address its own climate-related risks. Because such risks threaten the nation’s financial stability and private-sector operations, it is imperative …

Scrutiny Of Employee Covenants Not To Compete Under The Rule Of Reason: An Empirical Inquiry, Daniel A. Crane

Notre Dame Law Review Reflection

For over 300 years, the common law has scrutinized employee covenants not to compete for their reasonableness. That is about to change. On April 23, 2024, the Federal Trade Commission announced a rule that will prohibit employers from imposing noncompete agreements on workers. The rule declares all covenants not to compete in the employment context to be unfair methods of competition under section 5 of the FTC Act. If the rule takes effect, thirty million contracts will become illegal. The FTC justifies this rule based on the ostensibly pernicious effects of employee covenants not to compete—limiting employee opportunities to pursue …

Venality: A Strangely Practical History Of Unremovable Offices And Limited Executive Power, Jed Handelsman Shugerman

Notre Dame Law Review

The Roberts Court has asserted that Article II’s “executive power” implied an “indefeasible” or unconditional presidential removal power. In response to counterevidence from the Founding era, unitary executive theorists have claimed a “British Backdrop” of a general removal power under the English Crown and European “executive power.” These assumptions are incorrect.

This Article shows that many powerful executive officers through the late eighteenth century, especially high English Treasury offices and even “department heads” in the cabinet, were unremovable. A long common law tradition protected many English offices as freehold property rights. Moreover, this Article explains why it was widely understood …

A Remedy-Centered Approach To Antitrust, John O. Mcginnis, Grace Stippich

Notre Dame Law Review

This Article advocates for a remedy-centered approach to antitrust law, placing remedial concerns at the forefront of antitrust analysis. It asserts that the limits of effective remedies should fundamentally shape the scope of antitrust liability. Drawing on the “nirvana fallacy” from economic theory, the Article argues that antitrust should only intervene when a judicial remedy can reliably improve upon market conditions. If no such remedy exists, liability should not be imposed. The Article further demonstrates how remedial considerations already play a significant, if often unrecognized, role in antitrust doctrines, including the definitions of “agreement,” monopolists’ duties to deal, and the …

The Trouble With Classifications, Aziz Z. Huq

Notre Dame Law Review

The Supreme Court relies increasingly on anticlassification rules to implement the Constitution’s various commands of evenhanded state treatment. These rules direct attention to whether an instance of a forbidden classification is present on the face of a challenged law. They contain two necessary steps. First, a court defines a general category of impermissible terms. Second, a court ascertains whether an instance of the category is found in enacted text—so triggering the familiar strict scrutiny analysis. So defined, anticlassification rules now dominate equal protection, free speech, “dormant” Commerce Clause, and even free exercise jurisprudence. The Roberts Court celebrates these doctrinal tests …

Ad Hoc Constructions Of Penal Statutes, Joel S. Johnson

Notre Dame Law Review

The Supreme Court construed penal statutes in forty-three cases from the 2013 Term through the 2022 Term. In those cases, the Court tended to adopt narrow constructions, a preference consistent with several substantive canons of construction, such as the rule of lenity and the avoidance of constitutional vagueness concerns. Substantive canons were routinely included in party briefs, frequently raised during oral argument, and occasionally explicated in concurring opinions. Yet the Court did not rely on substantive canons in the vast majority of the narrow-construction cases. For example, the Court never firmly relied upon the rule of lenity—the substantive canon most …

The Lost History Of Judicial Restraint, Derek A. Webb

Notre Dame Law Review

For over 125 years, jurists and scholars who have championed judicial restraint have looked back to James Bradley Thayer’s 1893 Harvard Law Review article, The Origin and Scope of the American Doctrine of Constitutional Law, as the seminal authority for the rule that courts should presume the constitutionality of a challenged law and only invalidate it if its unconstitutionality is “clear” and “beyond a reasonable doubt.” But Thayer presented those three rules (presumption of constitutionality, clear error rule, and reasonable doubt standard) as rooted in historical legal practice in America. And yet none of his twentieth or twenty-first century …

A Uniform Choice? Esas And The State Right To Education, Hadiah C. Mabry

Notre Dame Law Review

Education savings accounts (ESAs) are on the rise. Just since 2023, ESAs have been on the legislative docket in Alabama, Georgia, Iowa, Montana, Ohio, Texas, Tennessee, and Wyoming, with ESAs already active in eleven other states. These programs provide funds directly to parents on a per-child basis which can be used on any number of educational pursuits. While ESAs are relatively young in the world of school choice, they are also the natural outgrowth of a greater push toward educational freedom for parents. They join the ranks of more established programs like school vouchers, tax credits, and charter schools.

Unlike …

Roving Extraterritoriality: The Murky Doctrine On State Laws Regulating Absent Citizens, Leo Schlueter

Notre Dame Law Review

It is generally agreed that sovereigns have the power to punish the crimes of their citizens abroad, at least in some situations. But sovereigns rarely exercise this power, and its contours are not well understood. This is especially true in the context of American federalism. It is unclear to what degree states have retained their sovereign extraterritorial powers, and the Supreme Court has never had occasion to fully explain their limits. Recent political developments, however, make it plausible that the question will soon arise. This Note attempts to provide some insight into the future debate over state criminal extraterritorial jurisdiction …

Ndls Communicator: Week Of 12.02.24, Notre Dame Law School

NDLS Communicator

The Latest News

• Inaugural Justice Amy Coney Barrett Moot Court Tournament at Notre Dame Law School culminates in strong competition and awards for top teams
• 2024 Peace Through Law Lecture: Juan E. Méndez
• Notre Dame Law School hosts symposium on the philosophical foundations of legal precedent
• Democracy Initiative awards 40 Democracy Catalyst Grants to projects across campus

Faculty News and Briefs

• Notre Dame is a pipeline for Supreme Court clerks, magnet for justices
• Roger Alford testified before the U.S. Senate Judiciary Committee in a hearing about the Credit Card Competition Act.
• Dean Marcus Cole spoke at Cathedral High School in …

Mmu: 12/02/24–12/08/24, Student Bar Association

Monday Morning Update

This Week @ NDLS

Mass Times

Commons Daily Menu

Saint of the Week

General Announcements

Mmu: 11/25/24–12/01/24, Student Bar Association

Monday Morning Update

This Week @ NDLS

Mass Times

Commons Daily Menu

Saint of the Week

General Announcements

Mmu: 11/18/24–11/24/24, Student Bar Association

Monday Morning Update

This Week @ NDLS

Mass Times

Commons Daily Menu

Saint of the Week

General Announcements

Ndls Communicator: Week Of 11.18.24, Notre Dame Law School

NDLS Communicator

The Latest News

• What Would You Fight For? Fighting for Religious Liberty
• ND Education Law Project files amicus brief in support of families excluded from California program because of their faith
• Notre Dame BLSA visits NYC for networking with top law firms and insights on DEI initiatives
• University of San Diego Law Professor Steven Smith delivers the Rice-Hasson Distinguished Lecture
• Notre Dame Law students provide critical legal aid through Appalachia Externship
• Notre Dame Law School co-hosts Law and Finance Conference, faculty members present research.

Faculty News and Briefs

• Bruce Huber wrote an article for The Conversation about the challenges of …

Mmu: 11/11/24–11/17/24, Student Bar Association

Monday Morning Update

This Week @ NDLS

Mass Times

Commons Daily Menu

Saint of the Week

General Announcements

Ndls Communicator: Week Of 11.11.24, Notre Dame Law School

NDLS Communicator

The Latest News

• Veterans Day 2024: Honoring our ND Law student veterans and reflecting on God, Country, Notre Dame
• Notre Dame Law Professor Avishalom Tor awarded Honorary Doctorate by University of Lucerne for pioneering behavioral legal research
• Notre Dame Law School hosts annual Rev. David T. Link Public Interest Banquet
• Notre Dame Law School’s Religious Liberty Clinic Provides Legal Support to Faith-Based Nonprofits
• Trailblazing Judge Michael Fitzgerald reflects on his career and advocacy for LGBTQ+ rights at ND Law LGBT Law Forum event

Faculty News and Briefs

• Diane Desierto's chapter about the UNHRC's jurisprudence from 2022-23 surrounding authoritarian regimes and …

The Seventh Amendment Right To Jury Trial In The Administrative State: Recognizing The Dangers Of The Constitutional Moment, Martin H. Redish, Samy Abdelsalam

Notre Dame Law Review

One prominent constitutional scholar has sought to legitimize this constitutional transformation through resort to a strange and controversial analytical model he describes as the “constitutional moment.” In this Article, we plan to establish two important points: (1) there exists no principled mode of analysis of the Seventh Amendment right to jury trial that justifies the Court’s categorical dichotomy between Article III and non–Article III forums for purposes of the right’s applicability, and (2) while the theory of the “constitutional moment” would in fact justify the Court’s insulation of the administrative state from Seventh Amendment applicability, reliance on such a theory …

Proper Parents, Proper Relief, Katie Grace Graziano

Notre Dame Law Review

Indian children belong with Indian parents—or so says the Indian Child Welfare Act (ICWA). ICWA requires certain procedures for carrying out the adoption of an Indian child. Among those procedures is an explicit preference for Indian families over non-Indian families. The hierarchy is so strict that a court must prioritize placing a child with an Indian family even if she is already thriving in the home of a non-Indian family, and even if her biological parents chose a non-Indian family to adopt her. This regime presents a clear constitutional issue. Can the government deny a family the adoption of a …

Non–Article Iii Federal Tribunals: An Essay On The Relation Between Theory And Practice, Richard H. Fallon Jr.

Notre Dame Law Review

Since the 1980s, the Supreme Court’s decisions involving the permissible uses of non–Article III federal tribunals have repeatedly invoked two competing theories. A “historical-exceptions” or “formalist” model would insist that only Article III judges can exercise federal adjudicative power except in three categories of cases that history marks as exceptional. A rival approach, often labeled “functionalism,” would allow further deviations from the historical norm if they are supported by sound practical justifications and do not threaten the fundamental role of the Article III judiciary within the separation of powers. This Article explores the relationship between theory and practice in explaining …

The Public/Private Rights Critics, Ann Woolhandler, Michael G. Collins

Notre Dame Law Review

In Adjudication in the Political Branches, Professor Caleb Nelson provided an influential account of when federal adjudication might take place outside of the Article III courts. The ability of Congress to place adjudicative matters outside of Article III courts largely depended on whether the matter might be considered one of public or private rights. Nelson also traced changes over time that undermined the coherence of the traditional public/private right distinction, and recommended returning to the traditional model. Later writers have attempted either to qualify or refute the existence of the public/private-rights framework by studying particular areas of law that …