Law Commons^™

Originalism’S Age Of Ironies, Sherif Girgis

Journal Articles

From the Article

Guns, abortion, religious establishments, Presidential power: While today’s Supreme Court identifies as originalist, it has settled constitutional questions on these and many other issues using history and tradition, not just original meaning. Scholars debate whether this trend can be squared with originalism. Last Term, the originalist Justices joined the fray. A close look at their dueling opinions reveals the divergent paths that originalists take when the method is pressed to its limits. It turns out that the purer one’s originalism at the level of theory, the less it constrains judges in practice. That is especially true for …

Ideological Leanings In Likely Pro Bono Biglaw Amicus Briefs In The United States Supreme Court, Derek T. Muller

Journal Articles

Each term, the United States Supreme Court receives hundreds of amicus briefs filed in merits docket cases. Many of the largest law firms file amicus briefs before the United States Supreme Court. These amicus briefs are often pro bono, which means the clients do not pay for the firm to file the brief. That pro bono work can quickly total millions of dollars of legal briefing subsidized by the law firm. And pro bono work often reflects the law firm’s desire to work for its prior commitments to what it identifies as the "public good."

Controversies have arisen in recent …

A Catholic Defense Of Corporate Law And Practice, Julian Velasco

Notre Dame Journal of Law, Ethics & Public Policy

No abstract provided.

The Puzzling Persistence Of Capital Punishment, Craig S. Lerner

Notre Dame Journal of Law, Ethics & Public Policy

No abstract provided.

Lessons In Rhetoric From Older Case Law, William B. Reingold Jr.

Notre Dame Journal of Law, Ethics & Public Policy

No abstract provided.

Sharing The Blame: Using Market Share To Allocate Liability In Opoid Public Nuisance Lawsuits, Molly G. Baldock

Notre Dame Journal of Law, Ethics & Public Policy

No abstract provided.

The “Orange Prince” Of Copyright: Warhol’S Prince Series & Transformative Fair Use, Haley A. Palmer

Notre Dame Journal of Law, Ethics & Public Policy

No abstract provided.

The Super Statute’S Kryptonite: The Faa After Efasha, Michael Snyder

Notre Dame Journal of Law, Ethics & Public Policy

No abstract provided.

Dignity Of Work And Freedom At Work: Ethical Reflections On The Article 4 Jurisprudence Of The European Court Of Human Rights, Clemens Sedmak

Notre Dame Journal of Law, Ethics & Public Policy

No abstract provided.

Accommodating Religious Liberty In An Artificially Intelligent Workplace, Michael H. Leroy

Notre Dame Journal of Law, Ethics & Public Policy

No abstract provided.

The Duty Of The Moment: Retooling The Agrarian Model Of Work/Home Integration, Erika Bachiochi

Notre Dame Journal of Law, Ethics & Public Policy

No abstract provided.

The Dignity Of Work: Is There A Transcendent Dimension?, Robert H. Tribken

Notre Dame Journal of Law, Ethics & Public Policy

No abstract provided.

Getting Back On Your Feet: Wrongful Discharge Remedies And Dignifying Work, Ben Tillinghast

Notre Dame Journal of Law, Ethics & Public Policy

No abstract provided.

Guardians Of Ethics For The Profession Of Arms: Judge Advocates Assisting Commanders To Choose The Harder Right Over The Easier Wrong, Lisa M. Schenck

Notre Dame Journal of Law, Ethics & Public Policy

No abstract provided.

Blackstone's Rule Has Limited Our Ability To Think, Brian Forst

Notre Dame Journal of Law, Ethics & Public Policy

No abstract provided.

Telling Stories, Curtis E. A. Karnow

Notre Dame Journal of Law, Ethics & Public Policy

No abstract provided.

The Tipping Point: Network Effects Of Tipping Quick-Service Restaurant Cashiers, Bree Hall

Notre Dame Journal of Law, Ethics & Public Policy

No abstract provided.

Asylum, Title 42, & Female Foreign Nationals, Cecilia I. Morin

Notre Dame Journal of Law, Ethics & Public Policy

No abstract provided.

Justified True Beliefs, The Gettier Problem, And Criminal Knowledge In The Model Penal Code, Yifei Wang

Notre Dame Journal of Law, Ethics & Public Policy

No abstract provided.

Nonprofit Corporations & Politics: The Entity/Coordination Tension, Lloyd Hitoshi Mayer

Journal Articles

Federal tax law treats separate nonprofit corporations as distinct legal entities for almost all purposes, in common with most other areas of law. With respect to political activity, this means that one nonprofit corporation’s lobbying or election related actions are generally not attributed to another nonprofit corporation. This is the case even if the two entities have overlapping or even identical boards of directors. It is also the case even if the two entities collaborate regarding their respective activities and share employees, facilities, outside vendors, and other resources, as long as the entities reasonably allocate the costs for those shared …

Showing Mercy Through A Presumption Of Retribution, Marah S. Mcleod

Journal Articles

From the Article

This Essay proposes a path toward the systematic consideration of mercy in American sentencing. America does not have to choose between retributive blame on the one hand and nonjudgmental mercy on the other. Inspired by Whitman's description of the European "presumption of mercy," America can implement a presumption of its own-one that opens the door to the nonarbitrary exercise of mercy, while retaining a clear focus on retributive desert. Such a presumption, tailored to American political realities and moral norms, might be called a "presumption of retribution"-and this presumption could be codified in law while explicitly made …

Presidential Adjudication, Emily S. Bremer

Journal Articles

Over the last several decades, administrative law has recognized an expanding role for the President in controlling agency decision making. Agency adjudication—and especially formal hearings conducted under the Administrative Procedure Act (“APA”)—have been viewed as properly insulated from this development. To protect due process, the APA established a regime for ensuring that competent, impartial Administrative Law Judges (“ALJs”) preside over formal hearings. The regime includes two apparent levels of for-cause removal protection for ALJs combined with robust agency head control over the policymaking aspects of formal adjudication. Today, the regime is in peril because it appears to be inconsistent with …

Developing A Professional Identity: Lessons For Women, Bipoc, And First Generation Law Students From The Canaries In The Coalmines, Christine Venter

Journal Articles

From the Article

This Article explores the concept of professional identity formation in the law, particularly as it pertains to women and lawyers of color. The topic of professional identity formation is an understudied area in legal education, despite the ABA’s new Standard 303(b)(3), which requires law schools to provide substantial opportunities for the development of professional identity. In the legal field, professional identity is often conflated with professionalism, which leads to confusion about how law schools should best prepare their students for their professional lives, and fails to fully equip students to join the profession.

Studies from other professions …

Brief Of Professor Derek T. Muller As Amicus Curiae In Support Of Neither Party, Heather Gebelin Hacker, Derek T. Muller

Court Briefs

No. 23-719
Donald J. Trump v. Norma Anderson

On Writ of Certiorari to the Supreme Court of Colorado

From the Summary of Argument

States hold the power to adjudicate the qualifications of presidential candidates. That power extends to the general election, even though the election is formally a process to appoint presidential electors. And that power extends to the primary election, even though state voters are formally selecting delegates to a party’s nominating convention. But states have no obligation to evaluate the qualifications of presidential candidates, and states may choose to permit openly unqualified presidential candidates to appear on the …

Testimony In Support Of Sb 394/Ab 407 Advertising Without Agency Agreement Or Written Consent, Roger P. Alford

Congressional Testimony

Before the Wisconsin State Senate Committee on Government Operations

From the Conclusion:

In light of the established price fixing behavior of NAR and major real estate brokerage companies with respect to real estate commissions, it is essential to promote alternatives such as FSBO home sales that facilitate price competition. I encourage this Committee to weigh the arguments of both sides and vote in favor of the position that actually protects Wisconsin consumers. I encourage you to vote in favor of SB 394.

Ndls Communicator: Week Of 12.18.23, Notre Dame Law School

NDLS Communicator

The Latest News

• Roger Alford testified before the Senate Judiciary Committee last Wednesday on "The New Invisible Hand? The Impact of Algorithms on Competition and Consumer Rights."
• Randy Kozel has published "Is Chevron Binding Law" in the Yale Journal on Regulation.
• Carter Snead wrote "The Jurisprudence & Politics of Abortion" for Commonweal in response to Bernard G. Prusak’s recent article “The Pro-Life Movement: Less Popular Than Ever?”
• Derek Muller was on the Bloomberg Law podcast, "SCOTUS Asked to Rule on Trump Immunity Claims."
• Stephanie Barclay's article, "The Historical Origins of Judicial Religious Exemptions," was cited in the Virginia Supreme Court's …

Request For An Advisory Opinion On Climate Emergency And Human Rights By The Republic Of Colombia And The Republic Of Chile, Diane A. Desierto, Francisco Urbina, Aníbal Pérez-Liñán, Nicolas Buitrago Rey, Faisal Yamil Meneses, Garrett Pacholl

Court Briefs

The Notre Dame Law School Human Rights Clinic (NDLS GHRC) in collaboration with the Notre Dame Reparations Design and Compliance Lab (ND Reparations Lab)

From the Introduction

Noting the request of the Republic of Colombia and the Republic of Chile for this Honorable Court to "provide guidance towards human rights-based solutions with an intersectional perspective," this Expert Opinion deliberately draws on interdisciplinary methods that weave international law, international human rights law, jurisprudence, quantitative tools of political science, and qualitative tools of social science research to assist this Honorable Court in its task of addressing the manifold questions brought by the …

Mmu: 12/11/23–12/17/23, Student Bar Association

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Ndls Communicator: Week Of 12.11.23, Notre Dame Law School

NDLS Communicator

The Latest News

• Derek Muller was interviewed and quoted in several news articles last week.
• Nicole Garnett was quoted in a Deseret News article, "Of church and state."
• Lawrence Solum of the Legal Theory Blog selected Stephanie Barclay's new article, "Replacing Smith," for the Download of the Week.
• Patrick Corrigan will be speaking on December 12 at the ACLE Seminar at the University of Amsterdam on "The Prisoner's Dilemma of Stockholders in Social Enterprises."
• Bruce Huber recently did an hour-long interview about climate change on the Good Faith podcast.
• Lisa Koop was one of the immigration lawyers interviewed in this …

Defendant St. Isidore Of Seville Catholic Virtual School's Reply Brief In Support Of Motion To Dismiss, Michael H. Mcginley, Steven A. Engel, M. Scott Proctor, John A. Meiser, Michael R. Perri, Socorro Adams Dooley

Court Briefs

No. CV-2023-1857
OKPLAC, Inc. v. Statewide Virtual Charter School Board

From the Introduction

Plaintiffs' opposition to the motions to dismiss distills their challenge to the State's approval of St. Isidore of Seville Catholic Virtual School ("St. Isidore") to its essence: Plaintiffs believe that the State of Oklahoma may never allow a religious organization to operate a charter school because (they contend) any faith-based school would violate the Charter Schools Act and the Oklahoma Constitution. They purport to raise other, purely technical errors in the Board's decision to partner with St. Isidore; they baselessly speculate about ways in which they predict …