Law Commons^™

Is Tax Law Different? Unconstitutional Conditions, Religious Organizations, And Taxation, Lloyd H. Mayer

Notre Dame Law Review Reflection

In common with other charities, religious organizations enjoy significant benefits under federal tax law, including exemptions from income tax and the ability of donors to deduct their contributions for income, gift, and estate tax purposes. A subset of religious organizations consisting of “churches,” which include houses of worship for all sects, and certain church-related entities also enjoy unique and significant procedural advantages. These include not having to apply to the Internal Revenue Service (IRS) for recognition of tax exemption, not having to file annual information returns with the IRS, and being subject to IRS inquiries and examinations only if the …

Germaneness And Religious Liberty, Michael P. Moreland

Notre Dame Law Review Reflection

One problem posed by a symposium on the doctrine of unconstitutional conditions and religious liberty is that it turns out there is not much actual doctrine in the area. The leading law and religion casebook contains only three references—each a passing mention—to unconstitutional conditions, characterizing Sherbert v. Verner as an unconstitutional conditions case and noting the relevance of unconstitutional conditions to the recent Trinity Lutheran Church of Columbia, Inc. v. Comer to Carson v. Makin line of funding cases. And so while the issue of unconstitutional conditions has been a topic in constitutional law more generally and is widely regarded …

Notre Dame Lawyers Connect: Summer 2023, Notre Dame Law School

Notre Dame Lawyers Connect

Save the Date: Homecoming: September 23 Weekend of the ND-Ohio State Game

ND Law holds third annual Notre Dame Religious Liberty Summit in London

New NDLA Board Members

• Tracy Warren '99 J.D.
• Qiana Lillard '98 B.A., '01 J.D.
• Paul Carvelli '86 B.A., '89 J.D.
• Ken Vorrasi '04 J.D.
• Adam Russ '02 BBA, '05 J.D.
• Giovanni Angles '11 J.D.
• Claudia Tran '17 J.D.

G. Marcus Cole reappointed as dean of Notre Dame Law School

LRAP deadline

‘Off the Court’: ND Law hosts event in New York City with Muffet McGraw and Coquese Washington ’92, ’97 J.D.

Alumni Spotlights

• NDLA Board honors …

Międzynarodowe Konsorcjum Katolickich Szkół Prawniczych Na Kul | Kul, John Paul Ii Catholic University Of Lublin, Marcus Cole

2019–Present: G. Marcus Cole

Jun 23, 2023

Brief statements made by Dr. Habiol. Andrzej Herbet, The Faculty of Law, Canon Law and Administration and Associate Professor and Chair of the Department of Commercial Law, The John Paul II Catholic University of Lubin, and G. Marcus Cole, Dean, and Professor of Law, University of Notre Dame Law School.

Na KUL odbywa się międzynarodowe Konsorcjum Katolickich Szkół Prawniczych. Pomysłodawcą i głównym organizatorem wydarzenia jest University of Notre Dame. Spotkanie ma charakter inauguracyjny, konstytuujący Konsorcjum. Podczas sesji naukowcy - prawnicy dzielą się spostrzeżeniami na temat funkcjonowania kierunku prawo na katolickich uczelniach, zastanawiają się nad celami instytucjonalnymi oraz …

Ndls Communicator: Week Of 06.19.23, Notre Dame Law School

NDLS Communicator

The Latest News

• ‘Off the Court’: ND Law hosts event in New York City with Muffet McGraw and Coquese Washington ’97 J.D.
• Notre Dame Law School announce the highest academic honors for the Class of 2023
• ND Law alumna Lenora Popken ’20 J.D. joins the Law School’s Exoneration Justice Clinic as legal fellow
• Three members of the Notre Dame Law School faculty — A.J. Bellia, Samuel Bray, and Nell Jessup Newton — were cited in Supreme Court opinions issued yesterday.
• Paul Miller has published a new paper, "Formalism, Legality, and the Rule of Law.," the latest chapter in a series …

Nd Lawyers Of New York City: ‘Off The Court’ With Muffet Mcgraw And Coquese Washington ’97 J.D., Marcus Cole

2019–Present: G. Marcus Cole

Notre Dame Law School Dean G. Marcus Cole participated in a fireside chat with Muffet McGraw, the former head women’s basketball coach at Notre Dame, and Coquese Washington ’92, ’97 J.D., the head women’s basketball coach at Rutgers on June 6 in New York City.

Ndls Communicator: Week Of 06.05.23, Notre Dame Law School

NDLS Communicator

The Latest News

• Lloyd Mayer discussed the federal tax rules for churches and politics in a Daily Beast article.
• Francisco Urbina presented a paper, "The Force of Separation of Powers," at the Public Law Discussion Group at the University of Oxford last week.
• Diane Desierto spoke last week at the U.S. Naval War College conference, “International Law and Conflict at Sea.” She discussed China’s exclusionary assertions of marine environmental protection jurisdiction in the South China Sea.
• Rick Garnett and Sherif Girgis participated in a interdisciplinary workshop on law, religion, and equality last week at the University of Oxford.
• The Religious …

Preemption Exemption: Fda-Approved Abortion Drugs After Dobbs, Jared C. Huber

Notre Dame Law Review

Dobbs v. Jackson Women’s Health Organization held that no constitutional right to abortion exists, overruling Roe v. Wade and Planned Parenthood of Southeastern Pennsylvania v. Casey. After Dobbs, states are free to regulate abortion as they see fit. Under Roe and Casey’s old regime, a state could not regulate abortion in a way that presented an “undue burden on a woman’s ability” to decide to abort. The Court handed down many cases which attempted to bring clarity to the murky standard. But the conglomeration of interpretation is now wiped away.

In Dobbs’s wake, states and the …

The Administrative Procedure Act: Failures, Successes, And Danger Ahead, Emily S. Bremer

Notre Dame Law Review

The Administrative Procedure Act (APA) is a profoundly important statute, operating as the superstatute backbone for the modern administrative state. This Essay argues that, although the APA deserves to be held in high regard, its procedural provisions have had more mixed success than is commonly acknowledged. These procedural provisions govern agency adjudication and rulemaking and, in both contexts, were designed to establish minimum procedural requirements that would apply uniformly across administrative agencies. Drawing on the extensive research that informed the APA's drafting, this Essay argues that the APA has failed to achieve its goal in adjudication, but has succeeded spectacularly …

Movement Administrative Procedure, Evan D. Bernick

Notre Dame Law Review

On April 4, 1946, The Potters Herald, a Thursday weekly dedicated to labor and union news, published an editorial warning readers of pending legislation “which may seriously affect labor” despite not containing a “single word about labor” in its text. This legislation would empower “anti-labor judges” to overturn decisions by the National Labor Relations Board. Despite its neutral appearance, it was in reality designed to “kick [labor and the NLRB] in the teeth” and would result in “a field day for the corporation lawyers.”

The complained-of legislation was the Administrative Procedure Act of 1946 (APA). From today’s vantage point, …

Vacatur, Nationwide Injunctions, And The Evolving Apa, Ronald M. Levin

Notre Dame Law Review

The courts’ growing use of universal or nationwide injunctions to invalidate agency rules that they find to be unlawful has given rise to concern that such injunctions circumvent dialogue among the circuits, promote forum shopping, and leave too much power in the hands of individual judges. Some scholars, joined by the Department of Justice, have argued that such judicial decisions should be limited through restrictive interpretations of the Administrative Procedure Act (APA).

This Article takes issue with these authorities. It argues that the courts’ use of the APA to vacate a rule as a whole—as opposed to merely enjoining application …

Making Sense Of Absence: Interpreting The Apa’S Failure To Provide For Court Review Of Presidential Administration, Noah A. Rosenblum

Notre Dame Law Review

Federal governance is increasingly characterized by presidential direction of administration. Yet the main statute that governs court review of administrative action, the Administrative Procedure Act, has strikingly little to say about the President.

This Essay seeks to make sense of this absence. It uses a brief survey of historical materials from the new Bremer-Kovacs Collection to sound the depths of the Administrative Procedure Act’s silence on the President. It then seeks to explain this omission by reference to contemporaneous discussions of the place of the president in the administrative state. The Essay hypothesizes that, at the time, the presidency was …

A Lack Of Uniformity, Compounded, In Immigration Law, Jill E. Family

Notre Dame Law Review

The Administrative Procedure Act (APA) is known for bringing standardization to federal agency behavior. The APA’s framework for adjudication, however, is lax and incomplete. It provides standards, but only meaningfully for formal adjudication, and Congress rarely requires agencies to follow the APA’s formal adjudication procedures. The APA, therefore, expressly allows for nonuniform adjudication in that it requires little of the informal adjudication category that makes up the lion’s share of agency adjudication.

This lack of uniformity in adjudication is prominent in immigration law. When federal agencies adjudicate whether to remove (deport) an individual from the United States, those agencies act …

The “Catch-22” Of Rule 23(B)(2): Past Purchaser’S Standing To Pursue Injunctive Relief, Margarete Tompkins

Notre Dame Law Review

This Note argues that past purchasers of a product have standing to pursue injunctive relief under Rule 23(b)(2). Part I discusses class actions and the current state of caselaw on false-labeling cases. I.A discusses the history of class actions generally, as well as the differing views on the purpose of Rule 23 throughout its history. I.B then provides background on standing, both generally and in the class action context. I.C explains the existing caselaw on standing for past purchasers, illustrating the looming circuit split on the issue. Part II then begins the argument portion of this Note. II.A argues that …

Remarks At Notre Dame Law School, Brett M. Kavanaugh

Notre Dame Law Review

During the Notre Dame Law Review’s 2023 Federal Courts Symposium, students and faculty gathered in the McCartan Courtroom in Eck Hall for a conversation with Justice Kavanaugh. Dean G. Marcus Cole moderated and fielded questions from attendees. Highlights from the event, adapted for print, are reproduced below. Questions and responses have been lightly edited for readability and clarity.

The Apa As A Super-Statute: Deep Compromise And Judicial Review Of Notice-And-Comment Rulemaking, William N. Eskridge Jr., John Ferejohn

Notre Dame Law Review

The Administrative Procedure Act of 1946 (APA) is a “super-statute,” creating a robust, enduring governance structure for the modern regulatory state. An emerging literature on “APA originalism” maintains that some of the judge-created rules of administrative law are inconsistent with the APA’s original public meaning and therefore illegitimate. In the context of notice-and-comment rulemaking, some academics and judges wield APA originalism as a reason to abrogate the presumption of judicial review, hard-look review of agency factual conclusions, and judicial deference to agency interpretations of law. Some of the judges who would apply original public meaning to those issues have asserted …

Interpreting The Administrative Procedure Act: A Literature Review, Christopher J. Walker, Scott T. Macguidwin

Notre Dame Law Review

The modern administrative state has changed substantially since Congress enacted the Administrative Procedure Act (APA) in 1946. Yet Congress has done little to modernize the APA in those intervening seventy-seven years. That does not mean the APA has remained unchanged. Federal courts have substantially refashioned the APA’s requirements for administrative procedure and judicial review of agency action. Perhaps unsurprisingly, calls to return to either the statutory text or the original meaning (or both) have intensified in recent years. “APA originalism” projects abound.

As part of the Notre Dame Law Review’s Symposium on the History of the Administrative Procedure Act …

The Path Of Administrative Law Remedies, Aditya Bamzai

Notre Dame Law Review

The question whether the term “set aside” in the Administrative Procedure Act (APA) authorizes a federal court to vacate a rule universally—as opposed to setting aside the rule solely as to the plaintiffs—is a significant and contested one. This Essay traces the history of the statutory term “set aside” from its origins in the 1906 passage of the Hepburn Act to its 1946 placement in the APA. During this era, Congress repeatedly used the term “set aside” in agency review statutes. This Essay argues that, in doing so, Congress did not intend to depart from the underlying remedial framework created …

Textualism And The Administrative Procedure Act, Kristin E. Hickman, Mark R. Thomson

Notre Dame Law Review

In recent years, the Supreme Court occasionally has applied a more limited approach to textualist reasoning that, if applied to the APA, could expand the perceived gulf between textualism and existing administrative law doctrine. Our purpose with this Essay is to explore the implications of this trend for APA interpretation, particularly as it might apply to agency rulemaking. We do not purport to address critics of textualism as an interpretive methodology; we speak primarily to those who are persuaded of textualism’s merits. We also will not try to resolve all the many disagreements about textualism’s variations or the APA’s meaning. …

The Emerging Possibility Of Religious Charter Schools: A Case Study Of Arizona And Massachusetts, Kathleen C. Ryan

Notre Dame Law Review

In July 2022, Arizona became the first state to create a universal school-choice program by passing the Empowerment Scholarship Account Program, an education savings account (ESA) for all students outside the public school system. Over the past thirty years, Arizona has expanded its school choice offerings, which includes one of the largest charter school systems in the nation. Today, students in Arizona have many choices for school, including traditional public schools, charter schools, magnet schools, secular private schools, and religious private schools. In the future, could one of those options be a religious charter school?

Justice Breyer’s dissent in Espinoza …

Due Deference: Kisor, Stinson, And The United States Sentencing Commission, Tim Steininger

Notre Dame Law Review

Under Kisor v. Wilkie, courts must defer to agencies’ interpretations of regulations when certain conditions are met. Lower courts continue to diverge, however, when it comes to the deference due the United States Sentencing Commission’s commentary. The Supreme Court has declined to come to the circuits’ aid. Commission commentary interprets its Guidelines. Guidelines are necessarily subject to the Administrative Procedure Act’s notice-and-comment requirements and congressional control; commentary is not. Given the heightened stakes inherent in sentencing, some argue that the rule of lenity should apply when a court considers deferring to commentary. This Note argues that such an approach …

Ndls Communicator: Week Of 05.30.22, Notre Dame Law School

NDLS Communicator

The Latest News

• G. Marcus Cole reappointed as dean of Notre Dame Law School
• Paolo Carozza receives ND faculty award
• Becket Fund for Religious Liberty presents ND Law Dean G. Marcus Cole with 2023 Legal Service Award
• ND Law to hold third annual Notre Dame Religious Liberty Summit in London
• UK House of Lords member David Alton to receive 2023 Notre Dame Prize for Religious Liberty
• Conference in Chile explores religious liberty and educational pluralism in Latin America and the Caribbean
• Professor Marah Stith McLeod holds criminal law workshop at Notre Dame’s Kylemore Abbey
• Program on Church, State & Society …

Becket Fund For Religious Liberty Presents Nd Law Dean G. Marcus Cole With 2023 Legal Service Award, Notre Dame Law School

2019–Present: G. Marcus Cole

The Becket Fund for Religious Liberty presented its 2023 Legal Service Award to Notre Dame Law School Dean G. Marcus Cole on Thursday, May 25, at Becket’s annual gala in New York City.

Becket selected Dean Cole to receive the award in recognition of his trailblazing expansion of the clinic concept in launching Notre Dame Law School’s Religious Liberty Initiative.

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Brief Of Professor Derek T. Muller As Amicus Curiae In Support Of Petition For Certiorari, Michael Francisco, Michael Brody, Derek T. Muller

Court Briefs

No. 22-1033
Eugene Mazo v. New Jersey Secretary of State

On Petition for Writ of Certiorari to the United States Court of Appeals for the Third Circuit

From the Summary of Argument

This Court has expressly held that the Anderson-Burdick balancing test for evaluating certain kinds of election laws does not extend to cases of pure political speech. McIntyre v. Ohio Elections Commission, 514 U.S. 334, 344 (1995). Laws restricting political speech are subject to strict scrutiny. Nevertheless, lower courts—including the Third Circuit in this case— continue to defy this Court’s guidance.

This case presents an important opportunity to …

Commencement 2024: Dean G. Marcus Cole’S Charge To The Graduating Class, Marcus Cole

2019–Present: G. Marcus Cole

Joseph A. Matson, Dean and Professor of Law, G. Marcus Cole delivered this charge to Notre Dame Law School’s Class of 2024 during the Law School’s Hooding Ceremony on May 18, 2024, in Purcell Pavilion.

Ndls Communicator: Week Of 05.22.23, Notre Dame Law School

NDLS Communicator

The Latest News

• Commencement 2023: Dean G. Marcus Cole’s charge to the graduating class
• Commencement 2023: Speech by Distinguished Professor of the Year Bruce Huber
• ND Law’s revamped Loan Repayment Assistance Program a boost for Class of 2023 graduates starting public interest careers
• Class of 2023: Meet six ND Law graduates who have become a ‘different kind of lawyer’
• Religious Liberty Clinic Highlights Student Fellows’ Work Defending Religious Freedom Around the World
• ND Law’s 2023 Shaffer Fellows to address housing issues, provide expungement relief in Chicago and rural Kentucky
• Congratulations ND Law Class of 2023!
• New library interface to go …

Commencement 2023: Speech By Distinguished Professor Of The Year Bruce Huber, Bruce R. Huber

Commencement Programs

Professor of Law Bruce Huber, selected by Notre Dame Law School’s Class of 2023 as Distinguished Professor of the Year, delivered the following speech to the class during the Law School’s Hooding Ceremony on May 20, 2023, in Purcell Pavilion.

Commencement 2023: Dean G. Marcus Cole’S Charge To The Graduating Class, Marcus Cole

Commencement Programs

Joseph A. Matson Dean and Professor of Law G. Marcus Cole delivered this charge to Notre Dame Law School’s Class of 2023 during the Law School’s Hooding Ceremony on May 20, 2023, in Purcell Pavilion.

178th Commencement Mass Program, University Of Notre Dame

Commencement Programs

Vigil Mass for the ascension of the Lord.

Presiding Celebrant and Homilist: Reverend John I. Jenkins, C.S.C., President of the University

Class Of 2023 Awards Ceremony, Notre Dame Law School

Commencement Programs

On Friday, May 19, Notre Dame Law School recognized its graduating students at the annual Awards Ceremony. Awards were presented for academic achievement, including Honor Roll, Dean’s Circle, Faculty Excellence, and Program of Study distinctions, as well as for excellence in writing, trial advocacy, and moot court. Students were also celebrated for their service to Notre Dame, their classmates, and the broader community. Below, we highlight a selection of this year’s awards and recipients.