Law Commons^™

Pretrial Commitment And The Fourth Amendment, Laurent Sacharoff

Notre Dame Law Review

Today, the Fourth Amendment Warrant Clause governs arrest warrants and search warrants only. But in the founding era, the Warrant Clause governed a third type of warrant: the “warrant of commitment.” Judges issued these warrants to jail defendants pending trial. This Article argues that the Fourth Amendment Warrant Clause, with its oath and probable cause standard, should be understood today to apply to this third type of warrant. That means the Warrant Clause would govern any initial appearance where a judge first commits a defendant—a process that currently falls far short of fulfilling its constitutional and historical function. History supports …

Climate Zoning, Christopher Serkin

Notre Dame Law Review

As the urgency of the climate crisis becomes increasingly apparent, many local governments are adopting land use regulations aimed at minimizing greenhouse gas (GHG) emissions. The emerging approaches call for loosening zoning restrictions to unlock greater density and for strict new green building codes. This Article argues that both approaches are appropriate in some places but not in others. Not all density is created equal, and compact multifamily housing at the urban fringe may actually in-crease GHG emissions. Moreover, where density is appropriate, deregulation will not necessarily produce it. And, finally, green building codes will increase housing costs and so …

Intellectual Property And The Myth Of Nonrivalry, James Y. Stern

Notre Dame Law Review

The concept of rivalry is central to modern accounts of property. When one per-son’s use of a resource is incompatible with another’s, a system of rights to determine its use may be necessary. It is commonly asserted, however, that informational goods like inventions and expressive works are nonrivalrous and that intellectual property rights must therefore be subject to special limitation, if they should even exist at all. This Article examines the idea of rivalry more closely and makes a series of claims about the analysis of rivalrousness for purposes of such arguments. Within that frame-work, it argues that rivalry should …

Proportionalities, Youngjae Lee

Notre Dame Law Review Reflection

“Proportionality” is ubiquitous. The idea that punishment should be proportional to crime is familiar in criminal law and has a lengthy history. But that is not the only place where one encounters the concept of proportionality in law and ethics. The idea of proportionality is important also in the self-defense context, where the right to defend oneself with force is limited by the principle of proportionality. Proportionality plays a role in the context of war, especially in the idea that the military advantage one side may draw from an attack must not be excessive in relation to the loss of …

Who Is A Minister? Originalist Deference Expands The Ministerial Exception, Jared C. Huber

Notre Dame Law Review

The ministerial exception is a doctrine born out of the Religion Clauses of the First Amendment that shields many religious institutions’ employment decisions from review. While the ministerial exception does not extend to all employment decisions by, or employees of, religious institutions, it does confer broad—and absolute—protection. While less controversy surrounds whether the Constitution shields religious institutions’ employment decisions to at least some extent, much more debate surrounds the exception’s scope, and perhaps most critically, which employees fall under it. In other words, who is a "minister" for purposes of the ministerial exception?

Rethinking Legislative Facts, Haley N. Proctor

Notre Dame Law Review

As the factual nature of legal inquiry has become increasingly apparent over the past century, courts and commentators have fallen into the habit of labeling the facts behind the law “legislative facts.” Loosely, legislative facts are general facts courts rely upon to formulate law or policy, but that definition is as contested as it is vague. Most agree that legislative facts exist in some form or another, but few agree on what that form is, on who should find them, and how. This Article seeks to account for and resolve that confusion. Theories of legislative fact focus on the role …

Mmu: 04/15/24–04/21/24, Student Bar Association

Monday Morning Update

This Week @ NDLS

Mass Times

Commons Daily Menu

General Announcement

Ndls Communicator: Week Of 04.15.24, Notre Dame Law School

NDLS Communicator

The Latest News

• Notre Dame Law School strengthens international ties with MOUs with Panthéon-Assas and Lucerne
• Prof. Robert P. Thompson Shares Insights on Securities Law at ND Law Patricia O'Hara Distinguished Lecture in Law & Business
• Notre Dame Law School holds third annual Interfaith Dinner in observance of Passover, Easter, Ridván, and Ramadan
• On April 11 and 12, Jay Tidmarsh participated in two panels at a conference organized by the James Humphreys Complex Litigation Center at George Washington University Law School.
• Mary Ellen O'Connell was quoted in an article by Morningstar Online, "Nicaragua takes Germany to top UN court seeking …

Mmu: 04/08/24–04/14/24, Student Bar Association

Monday Morning Update

This Week @ NDLS

Mass Times

Commons Daily Menu

General Announcements

Ndls Communicator: Week Of 04.08.24, Notre Dame Law School

NDLS Communicator

The Latest News

• Professor Alexander "Sandy" Steel receives a Leverhulme Major Research Fellowship
• Mary-Kathryn Takeuchi ‘20 J.D. joins ND Law’s Exoneration Justice Clinic as legal fellow
• First Catholic charter school providing access for underserved students defended by Notre Dame Religious Liberty Clinic
• Emily Bremer is speaking today on "New Challenges in Adjudication and Judicial Review" as a panelist at Widener University Commonwealth Law School's Law Review Symposium.
• Mary Ellen O'Connell was quoted in the Washington Post in "Top UN court will hold hearings in a case accusing Germany of facilitating Israel's Gaza conflict."
• A recent ruling by the Florida Supreme …

Notre Dame Lawyers Connect: Spring 2024, Notre Dame Law School

Notre Dame Lawyers Connect

ND Law Professor Daniel Kelly appointed dean at University of St. Thomas School of Law

U. S. Supreme Court Justice Amy Coney Barrett and Israel Supreme Court Justice Alex Stein speak at Notre Dame Law School

Notre Dame Law student and Eviction Clinic secure unexpected victory for South Bend family

Events - Save the Date: Homecoming on October 12

Faculty

• Notre Dame Law School awards endowed professorships to Paul Miller and Jeff Pojanowski
• Professor Derek Muller weighs in on lawsuits challenging former President Donald Trump's eligibility
• Professor Carter Snead presents at Pontifical Academy for Life assembly at the Vatican

Students …

Mmu: 04/01/24–04/07/24, Student Bar Association

Monday Morning Update

This Week @ NDLS

Mass Times

Commons Daily Menu

General Announcements

Ndls Communicator: Week Of 04.01.24, Notre Dame Law School

NDLS Communicator

The Latest News

• Indiana Attorney General recognizes Notre Dame Law Center for assisting homeowner in 'tax rescue' scheme litigation
• LAMB EBEAL Conference 2024
• Lloyd Mayer was quoted in a Tax Notes federal article, "Group Lays Groundwork to Test Tax Code Political Donation Limits."
• Mary Ellen O'Connell will speak at the University of Manchester's Humanitarian and Conflict and Response Institute on April 11 on "Attempting to Kill: the Law of Peace Public Talk."
• Randy Kozel has published a new article, "Going En Banc," forthcoming in the Florida Law Review.
• Roger Alford was quoted in a Bloomberg Law article about the DOJ's …

Charity Law & Blockchain Technology: Using Old Wineskins For New Wine?, Lloyd Hitoshi Mayer

Journal Articles

Whenever something new emerges, the question of how existing law applies arises. Sometimes it is both easy to answer that question and the answer is consistent with the policy goals of existing law. But sometimes the answer to that question is uncertain, does not fit well with those policy goals, or reflects a mixture of these two issues.

This question is particularly vexing today with respect to new assets facilitated by blockchain technology. These new assets include cryptocurrencies, non-fungible tokens (NFTs), and ownership interests in decentralized autonomous organizations (DAOs). Commentators have written about how certain laws, particularly securities law, apply …

Mmu: 03/25/24–03/31/24, Student Bar Association

Monday Morning Update

This Week @ NDLS

Mass Times

Commons Daily Menu

General Announcements

Ndls Communicator: Week Of 03.25.24, Notre Dame Law School

NDLS Communicator

The Latest News

• Spring break takes ND Law students on educational journeys
• Championing religious freedom: Notre Dame Law School delegation explores Islamophobia and antisemitism in France
• Professor Carter Snead Testifies Before U.S. Senate Judiciary Committee
• MOU signings in Paris and Lucerne
• Oak Flat under threat: Professor Stephanie Barclay leads discussion on urgency of protecting Indigenous sacred site
• The DEI Podcast JUST ACTION: How to Challenge Segregation Enacted Under the Color of Law
• Concurrent Professor Emilia Justyna Powell hosted a conference and panel discussion with Professors Roger Alford, Paolo Carozza, and Diane Desierto, and European experts on her latest book, "The …

Hearing Before The United States Senate Committee On The Judiciary The Continued Assault On Reproductive Freedoms In A Post-Dobbs America, O. Carter Snead

Congressional Testimony

O. Carter Snead, Charles E. Rice Professor of Law and director of the de Nicola Center for Ethics and Culture at the University of Notre Dame, offered expert testimony on March 20, 2024 before the U.S. Senate Committee on the Judiciary, "The Continued Assault on Reproductive Freedoms in a Post-Dobbs America," on the current legal landscape following the landmark Supreme Court decision in Dobbs v. Jackson Women’s Health Organization.

Originally posted U.S. Senate Committee on the Judiciary.

Perma.cc

Ndls Communicator: Week Of 03.18.24, Notre Dame Law School

NDLS Communicator

The Latest News

• Notre Dame Stories: Kristina Swanson
• ND Law Galilee Program: Empowering public service paths
• Notre Dame Religious Liberty Clinic supports Hindu organization’s freedom to use its property for religious practice
• Divided Ninth Circuit rejects Apache religious challenge to mine development on sacred land at Oak Flat
• ND Law Global Human Rights Clinic files amicus brief in support of religious freedom in Ecuadorian abortion case
• ND Law School event explains the ICJ ruling on South Africa’s genocide case against Israel
• Derek Muller was quoted in an article by The Economist, CNN, Election Law Blog, and the Washington Post about …

Mmu: 03/18/24–03/24/24, Student Bar Association

Monday Morning Update

This Week @ NDLS

Mass Times

Commons Daily Menu

General Announcements

Amicus Curiae Brief Of The Notre Dame Law School Religious Liberty Clinic In Support Of Plaintiffs-Appellants, John A. Meiser, Meredith Holland Kessler

Court Briefs

Nos. 23-3453 and 23-3633
Spirit of Aloha Temple v. County of Maui

Appeal from the United States District Court for the District of Hawaii Honorable Susan Oki Mollway (No. 1:14-cv-00535-SOM-WRP)

From the Summary of the Argument

To determine whether a land-use regulation unlawfully imposes a substantial burden on a plaintiff’s religious exercise, courts conduct a holistic and nuanced inquiry. At bottom, that analysis asks whether and to what extent the government has impaired the plaintiff’s ability to fulfill a religious need. The answer to this question must take into account a range of considerations concerning the plaintiff’s religious beliefs and …

Ndls Communicator: Week Of 03.04.24, Notre Dame Law School

NDLS Communicator

The Latest News

• Notre Dame Law student and Eviction Clinic secure unexpected victory for South Bend family
• Professor Carter Snead presents at Pontifical Academy for Life assembly at the Vatican
• Patrick Corrigan's new paper, "ES" Versus "G" in Corporate Governance: You Can't Have It All" was quoted in the Forbes article, “Observing OpenAI’s Affair With Musk: A Legal Drama Unfolds.”
• Sherif Girgis's article, "Living Traditionalism," was mentioned by the New York Times as support for Justice Barrett's and Judge Newsome's interpretation of "history-and-tradition" tests.
• Derek Muller's first quotes about the Supreme Court ruling today are in The Conversation, "Supreme Court …

Mmu: 03/04/24–03/10/24, Student Bar Association

Monday Morning Update

This Week @ NDLS

Mass Times

Commons Daily Menu

General Announcements

Mmu: 02/26/24–03/03/24, Student Bar Association

Monday Morning Update

This Week @ NDLS

Mass Times

Commons Daily Menu

General Announcements

Ndls Communicator: Week Of 02.26.24, Notre Dame Law School

NDLS Communicator

The Latest News

• Notre Dame Law School awards endowed professorships to Paul Miller and Jeff Pojanowski
• Professor Richard Garnett appointed to serve as a lay consultant on the USCCB's Committee for Religious Liberty
• ND Law EJC director Jimmy Gurulé to address Consular Summit in Mexico City on wrongful convictions
• ND Law students win asylum for families through immigration externship
• Clinical Professor Emerita Judith Fox co-authors Eviction Court Watch Study
• Sherif Girgis' article, "Living Traditionalism," was quoted in the New York Times to help interpret Justice Barrett's and Judge Newsom's takes on the Supreme Court's 'history-and-tradition' tests.
• Emily Bremer's new paper, …

Mmu: 02/19/24–02/25/24, Student Bar Association

Monday Morning Update

This Week @ NDLS

Mass Times

Commons Daily Menu

General Announcements

Ndls Communicator: Week Of 02.19.24, Notre Dame Law School

NDLS Communicator

The Latest News

• Notre Dame Law Review hosts symposium on 'Speech and Religious Exercise in the Workplace'
• Paul Miller, along with Thaïs Burmeister Pires, Director for Initiatives in Brazil of Notre Dame International’s São Paulo Global Center, recently visited several leading law schools and educational specialists throughout Brazil.
• Jeff Pojanowski joined Judge Stephanos Bibas, U.S. Court of Appeals for the Third Circuit, for a discussion, "Beyond Left and Right" about the nature, role, and future of the U.S. Supreme Court at the New York Encounter conference. Giuliana Carozza Cipollone moderated the discussion.
• The ND Law Journal of International & Comparative …

Mmu: 02/12/24–02/18/24, Student Bar Association

Monday Morning Update

This Week @ NDLS

Mass Times

Commons Daily Menu

General Announcements

Ndls Communicator: Week Of 02.12.24, Notre Dame Law School

NDLS Communicator

The Latest News

• U.S. Supreme Court Justice Amy Coney Barrett and Israel Supreme Court Justice Alex Stein speak at Notre Dame Law School
• Patrick Corrigan's work was cited by The Securities and Exchange Commission om its January 24, 2024 release accompanying the recent publication of new regulations governing certain transactions involving special purpose acquisition companies.
• Roger Alford was quoted in a Bloomberg Law article about recent trends in state antitrust laws.
• Sam Bray participated on a panel about universal injunction as part of the Harvard Law Rappaport Forum last week.
• Sadie Blanchard published a new paper, "Contract or Prison," about …

Mmu: 02/05/24–02/11/24, Student Bar Association

Monday Morning Update

This Week @ NDLS

Mass Times

Commons Daily Menu

General Announcements

Ndls Communicator: Week Of 02.05.24, Notre Dame Law School

NDLS Communicator

The Latest News

• Last week, the International Religious Freedom Summit occurred in Washington, DC. Several ND Law faculty members participated.
• Last week, Lloyd Mayer presented a draft essay, "Nonprofit Corporations & Politics: The Entity/Coordination Tension" at The University of Chicago Business Law Review's symposium on The Corporation's Role in Politics.
• Christian Burset co-authored "Partisan Legal Traditions in the Age of Camden and Mansfield," which will be published in a forthcoming Oxford Journal of Legal Studies issue.
• Francisco Urbina published a new essay, "It Doesn't Matter What 'Interpretation' Is," based on Cass Sunstein's book.
• Avishalom Tor recently co-edited “Oxford Handbook on …