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Brief Of Notre Dame Law School Religious Liberty Clinic As Amicus Curiae In Support Of Petitioner, John A. Meiser, Meredith Holland Kessler

Court Briefs

No. 22-741
Faith Bible Chapel International v. Gregory Tucker

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

From the Summary of Argument

The First Amendment demands that courts refrain from intruding into disputes over a religious organization’s selection of important leaders. The ministerial exception enforces that demand. And thus, nearly every court to consider the issue has agreed: the ministerial exception promises something akin to an immunity from suit, which must be resolved early in litigation to be effective.

Emily Bremer: Women Lead 2023, Denise Wager, Office Of Public Affairs And Communications, University Of Notre Dame

NDLS in the News

Emily Bremer has emerged as a leading expert and scholar in the area of administrative law. She looks specifically at the cross-cutting rules and procedures that federal agencies are required to follow when administering the law, such as by determining Social Security benefits, licensing telecommunications companies, enforcing immigration laws, or deciding how other laws apply to individual cases.

Mmu: 03/06/23–03/12/23, Student Bar Association

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Ndls Communicator: Week Of 03.06.23, Notre Dame Law School

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The Latest News

• Women Lead 2023: Emily Bremer
• Bob Jones was quoted in an Indiana Lawyer article about a housing law report published by IU McKinney law students. The article also mentions the eviction report that ND Law clinic students recently published.
• Avishalom Tor presented his forthcoming article "The Private Costs of Behavioral Interventions," 72 Duke Law Journal (forthcoming 2023) as part of the 53rd Duke Law Journal Administrative Law Symposium.
• Mary Ellen O'Connell was one of the panelists at the Notre Dame Forum event with Cardinal Robert McElroy last week.
• Diane Desierto has published a book review on "Human …

Live Chat With G. Marcus Cole, Marcus Cole, Lou Nanni

2019–Present: G. Marcus Cole

Join us on Wednesday, March 1 [2023] @ Noon ET, for a live chat with G. Marcus Cole, Joseph A. Matson Dean and Professor of Law at Notre Dame Law School. Marcus will discuss recent successes at the Religious Liberty Initiative, the Exoneration Justice Clinic, and more.

Host: Lou Nanni, Vice President, Office of VP-University Relations

What's Originalism After Transunion?: Picking An Originalist Approach That Gets Standing Back On Track, Julian Gregorio

Notre Dame Law Review Reflection

This Note argues that not only is standing fascinating and contested, but it is so important that the Court should reconsider standing doctrine in appropriate future cases. While the TransUnion case came and went without much kerfuffle outside of legal circles, standing does not find itself sailing smoothly. As noted, perhaps the Court’s most reliable originalist just dissented from a case that largely restates the current law on standing. And Justice Kagan, perhaps the Court’s most influential liberal, wrote that after TransUnion, standing jurisprudence “needs a rewrite.” Given the current makeup of the Court, any reconsideration of standing doctrine …

The Limitations Of Privacy Rights, Daniel J. Solove

Notre Dame Law Review

Individual privacy rights are often at the heart of information privacy and data protection laws. The most comprehensive set of rights, from the European Union’s General Data Protection Regulation (GDPR), includes the right to access, right to rectification (correction), right to erasure (deletion), right to restriction, right to data portability, right to object, and right to not be subject to automated decisions. Privacy laws around the world include many of these rights in various forms.

In this Article, I contend that although rights are an important component of privacy regulation, rights are often asked to do far more work than …

Living Recipes . . . And Constitutions, John Vlahoplus

Notre Dame Law Review Reflection

Professor Gary Lawson and Zachary Pohlman assert that we can only follow recipes and by analogy the Constitution by complying with the original public or authorial meaning of the instructions in their texts. Absent an instruction in the recipe’s text authorizing changes, any departure from historical meaning amends the recipe rather than follows it.

This response uses the works of renowned chefs to sketch a competing theory. Following a recipe requires a cook to consider many of the same factors as pluralist and living constitution theories of law including text, history, purpose, current circumstances, personal experience, and individual judgment. Even …

Specific Performance: On Freedom And Commitment In Contract Law, Hanoch Dagan, Michael Heller

Notre Dame Law Review

When should specific performance be available for breach of contract? This question—at the core of contract—divides common-law and civil-law jurisdictions and it has bedeviled generations of comparativists, along with legal economists, historians, and philosophers. Yet none of these disciplines has provided a persuasive answer. This Article provides a normatively attractive and conceptually coherent account, one grounded in respect for the autonomy of the promisor’s future self. Properly understood, autonomy explains why expectation damages should be the ordinary remedy for contract breach. This same normative commitment justifies the “uniqueness exception,” where specific performance is typically awarded, and the personal services exclusion, …

Battlegrounds For Banned Books: The First Amendment And Public School Libraries, Jensen Rehn

Notre Dame Law Review

Embedded in each conversation about banning books are arguments that use legal terminology. A brief conversation about banned books with a librarian will likely lead to a discussion of the “Library Bill of Rights” published by the ALA. No one is bound by the ALA’s Bill of Rights, which lacks a method of enforcement. Thus, the question remains: what is the legal landscape of banning books? Unfortunately, the Supreme Court has not provided a clear precedent about banning books from public school libraries. In fact, the Supreme Court has only taken cases about libraries on three occasions, each of which …

A Prophylactic Approach To Compact Constitutionality, Katherine Mims Crocker

Notre Dame Law Review

From COVID-19 to climate change, immigration to health insurance, firearms control to electoral reform: state politicians have sought to address all these hot-button issues by joining forces with other states. The U.S. Constitution, however, forbids states to “enter into any Agreement or Compact” with each other “without the Consent of Congress,” a requirement that proponents of much interstate action, especially around controversial topics, would hope to circumvent.

The Supreme Court lets them do just that. By interpreting “any Agreement or Compact” so narrowly that it is difficult to see what besides otherwise unlawful coordination qualifies, the Court has essentially read …

The Scope Of Compelling Government Interests, R. George Wright

Notre Dame Law Review Reflection

In constitutional cases, any relevant government interest may be said to vary in its breadth or scope. Government interests can be characterized narrowly or broadly. The narrowness or breadth of how courts choose to formulate a government interest may well affect that interest’s overall weight or legal significance. For example, a public interest in safety and security, broadly conceived, may seem compelling. But the public interest in merely some modest upgrading of a safety and security regulation may seem less than compelling. A court might adopt either description. A court’s choice to characterize the government interest at stake as either …

The Structure Of Criminal Federalism, Erin C. Blondel

Notre Dame Law Review

Scholars and courts have long assumed that a limited federal government should stick to genuinely “federal” crimes and leave “local” crimes to the states. By that measure, criminal federalism has failed; federal criminal law largely overlaps with state crime, and federal prosecutors regularly do seemingly “local” cases. Despite nearly unlimited paper jurisdiction, however, the federal enforcement footprint has remained tiny and virtually static for a century. Something is strongly limiting the federal system, just not differences in substantive coverage.

The answer is different enforcement responsibilities. The police power means states alone provide basic public safety and criminal justice. Rather than …

Congressional Power, Public Rights, And Non-Article Iii Adjudication, John M. Golden, Thomas H. Lee

Notre Dame Law Review

When can Congress vest in administrative agencies or other non–Article III federal courts the power to adjudicate any of the nine types of “Cases” or “Controversies” listed in Article III of the United States Constitution? The core doctrine holds that Congress may employ non–Article III adjudicators in territorial courts, in military courts, and for decision of matters of public right. Scholars have criticized this so-called “public rights” doctrine as incoherent but have struggled to offer a more cogent answer.

This Article provides a new, overarching explanation of when and why Congress may use non–Article III federal officials to adjudicate matters …

The Limits Of Church Autonomy, Lael Weinberger

Notre Dame Law Review

American courts apply “church autonomy doctrine” to protect the self-governance of religious institutions, based on both of the First Amendment’s religion clauses. Church autonomy’s defenders have sometimes described the doctrine as establishing distinct spheres of sovereignty for church and state. But critics have argued that church autonomy puts religious institutions above the law. They contend that church autonomy doctrine lacks limiting principles and worry that the “sphere sovereignty” theory of church and state leaves no room for accountability for wrongdoing in religious institutions. The courts, for their part, have recognized that church autonomy must have limits but have struggled to …

The Stewardship Model Of Necessity, Joseph Graziano

Notre Dame Law Review

The current understanding of the necessity defense to trespass to property in American law stems from a simple—or perhaps simplistic—balancing of rights. Based in the individualistic understanding of property as a right against the world that creates an obligation for others, necessity pits the interloper’s right to life, liberty, or property against the property owner’s right. Although feasible in the extremes, dueling rights leads to an unwieldy judicial task, discouraging advocates from alleging the privilege and discouraging judges from recognizing the privilege. Overall, the right to exclude has become more and more the libertarian vision of a right to be …

Brief Of Religious Liberty Scholars And Employment Law Scholars As Amici Curiae In Support Of Petitioner, Douglas Laycock, John A. Meiser, Richard W. Garnett

Court Briefs

No. 22-174
Gerald E. Groff v. Louis DeJoy

On Writ of Certiorari to the U.S. Court of Appeals for the Third Circuit

From the Summary of Argument

This case demonstrates an error that has undermined protection for religious workers across the country, in defiance of clear statutory text and underlying principles of religious liberty.

Mmu: 02/27/23–03/05/23, Student Bar Association

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Ndls Communicator: Week Of 02.27.23, Notre Dame Law School

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The Latest News

• Religious Liberty Initiative supports criminal complaint against Chinese government for Uyghur genocide
• The Supreme Court will hear arguments in President Joe Biden’s student loan forgiveness plan case tomorrow. An amicus brief filed by Sam Bray, along with William Baude of the University of Chicago, about the case was mentioned in several media outlets.
• Mary Ellen O'Connell was quoted by Our Sunday Visitor in "Putin’s Suspension Of Key US-Russia Nuclear Arms Treaty Increases Global Risk, Say Experts.”
• Nicole Garnett wrote, "Losing a Lifeline" for the City Journal about the closure of more than a dozen New York City …

Amicus Brief, David Patrick Paul Alton, Sam Brownback, Kelley E. Currie, Nury Turkel, Frank Wolf, Francesca Matozzo, Stephanie Barclay

Court Briefs

Exp. 2774/2022
Kanat, Omer and Others s/ Investigation of Crime

From the Introduction

China has committed numerous atrocities against the Uyghur people, whom the Chinese Communist Party views as a threat for their religiosity and distinct way of life. Uyghurs have been forcibly removed from their homes and put into “reeducation camps,” where they are tortured, forced into labor, and cut off from their families. Many Uyghurs do not survive their torture in the camps. Those who remain at home are forced to accept a government agent to live in their home to ensure they do not pray, read the …

Brief Of Professor Derek T. Muller As Amicus Curiae In Support Of No Party, Ryan G. Koopmans, Derek T. Muller

Court Briefs

No. 22-2036
Planned Parenthood of the Heartland, Inc. v. Kim Reynolds

Appeal from the Iowa District Court for Polk County Celene Gogerty, District Judge
No. EQCE083074

From the Summary of Argument

Important questions about Iowa constitutional law and abortion are at issue in this appeal. But there is an important, separate question that is predicate to these issues; a question that has the potential for far-reaching impact in civil litigation, of any type, throughout the State of Iowa: When do Iowa courts have the power to modify injunctions based on changes in law?

Mmu: 02/20/23–02/26/23, Student Bar Association

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1L of the Week:Joey Forchetti

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Ndls Communicator: Week Of 02.20.23, Notre Dame Law School

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The Latest News

• Notre Dame Clinical Law Center publishes report on shortcomings in Indiana eviction laws
• Federal judges visit ND Law to hear 73rd annual Moot Court Showcase Argument
• Religious Liberty Clinic supports Catholic dioceses’ efforts to operate the first faith-based charter school in the U.S.
• Catholic Schools and Religious Liberty: A Global Perspective
• Religious Liberty Initiative adds three members to board of advisors
• Freedom of Expression at Notre Dame
• Emily Bremer joined a discussion on a recent Law and Governance episode discussing Kathleen Claussen's new article about what if anything constrains federal agencies in implementing transnational regulatory agreements.
• Philanthropy …

Mmu: 02/13/23–02/19/23, Student Bar Association

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1L of the Week: Robert Stone Curl

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Ndls Communicator: Week Of 02.13.23, Notre Dame Law School

NDLS Communicator

The Latest News

• Justice Dumisa Ntsebeza of South Africa visits Notre Dame Law School
• Mary Ellen O’Connell to speak at international AI summit at The Hague
• Avishalom Tor presented “When Should Governments Invest More in Nudging? Revisiting Benartzi et al. (2017),” (coauthored with Jon Click) at the UCL-based London Judgment and Decision Making Seminar on February 1.
• Diane Desierto participated in a Q&A interview Völkerrechtsblog’s symposium ‘The Person behind the Academic!" She answers a variety of questions about her work and life.
• Mary Ellen O'Connell reflects on the one year anniversary of the war in Ukraine with other ND experts. …

Mmu: 02/06/23–02/12/23, Student Bar Association

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1L of the Week: Tristan Mullen

2Ls Taking Ls: Olla Jaraysi

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Shideya's Corner

Ndls Communicator: Week Of 02.06.23, Notre Dame Law School

NDLS Communicator

The Latest News

• Kresge Law Library serves as a Preservation Steward for U.S. Government Publishing Office
• LL.M. alumni publish article calling on United Nations to take urgent action to protect Afghan women’s rights
• Sam Bray was interviewed by CNN in an article about if states challenging President Biden’s student loan forgiveness program have the legal right to bring the dispute in the first place.
• Bruce Huber spoke with the Guardian about how a new complaint against Shell highlights the pressure that environmentalists are placing on fossil fuel companies.
• Jimmy Gurulé joined the Bloomberg Law Podcast earlier this week to discuss …

Mmu: 01/30/23–02/05/23, Student Bar Association

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1L of the Week: Annad Khraisat

2Ls Taking Ls: Kate Hahn

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Jakim's Corner

Ndls Communicator: Week Of 01.30.23, Notre Dame Law School

NDLS Communicator

The Latest News

• ND Law Review symposium features Q&A with Supreme Court Justice Brett Kavanaugh
• Stephanie Barclay will speak at the UC Hastings Law Journal's annual symposium, "The Present and Future of Religious Freedom" on Feb 3. She will discuss the development of the Free Exercise Clause and the future of religious freedom.
• Diane Desierto has published, "Global Perspectives on Teaching International Investment Arbitration: Teaching International Investment Arbitration in the Global North and the Global South" in the Kluwer Arbitration Blog.
• Rick Garnett was also quoted in the Tablet article, "Supreme Court to Hear Case of Postal Worker Forced to …

Supreme Court Justice Brett Kavanaugh: 2023 Notre Dame Law Review Federal Courts Symposium, Marcus Cole, Brett Kavanaugh

2019–Present: G. Marcus Cole

Jan 26, 2023

NOTRE DAME LAW SCHOOL

U.S. Supreme Court Associate Justice Brett Kavanaugh covered a range of topics during a keynote Q&A at the 2023 Notre Dame Law Review Federal Courts Symposium, held on January 23 in the McCartan Courtroom. Justice Kavanaugh was joined by G. Marcus Cole, the Joseph A. Matson Dean and Professor of Law at Notre Dame Law School, and responded to questions from students and faculty members in the audience.