Law Commons^™

On The Rightful Deprivation Of Rights, Frederick Schauer

Notre Dame Law Review

When people are deprived of their property rights so that the state can build a highway, a school, or a hospital, they are typically compensated through what is commonly referred to as “takings” doctrine. But when people are deprived of their free speech rights because of a clear and present danger, or deprived of their equal protection, due process, or free exercise rights because of a “compelling” governmental interest, they typically get nothing. Why this is so, and whether it should be so, is the puzzle that motivates this Article. Drawing on the philosophical literature on conflicts of rights and …

Debs And The Federal Equity Jurisdiction, Aditya Bamzai, Samuel L. Bray

Notre Dame Law Review

The United States can sue for equitable relief without statutory authorization. The leading case on this question is In re Debs, and how to understand that case is of both historical and contemporary importance. Debs was a monumental opinion that prompted responses in the political platforms of major parties, presidential addresses, and enormous academic commentary. In the early twentieth century, Congress enacted several pieces of labor legislation that reduced Debs’s importance in the specific context of strikes. But in other contexts, the question whether the United States can bring suit in equity remains disputed to this day. The …

Social Trust In Criminal Justice: A Metric, Joshua Kleinfeld, Hadar Dancig-Rosenberg

Notre Dame Law Review

What is the metric by which to measure a well-functioning criminal justice system? If a modern state is going to measure performance by counting something—and a modern state will always count something—what, in the criminal justice context, should it count? Remarkably, there is at present no widely accepted metric of success or failure in criminal justice. Those there are—like arrest rates, conviction rates, and crime rates—are deeply flawed. And the search for a better metric is complicated by the cacophony of different goals that theorists, policymakers, and the public bring to the criminal justice system, including crime control, racial justice, …

Democracy's Forgotten Possessions: U.S. Territories' Right To Statehood Through Constitutional Liquidation, Joshua Stephen Ebiner

Notre Dame Law Review

This Note argues that the Territories must be granted statehood consistent with the equal footing doctrine. This thesis does not challenge Congress’s power to acquire or govern territory, or its constitutional authority to admit (and place reasonable conditions on the admission of) territory into the Union as states. These matters have long been settled through constitutional practice. Neither does this thesis suggest that acquired territory must be immediately annexed into the Union, since there are valid reasons to delay such a decision. Instead, the claim is that permanently inhabited territories that have longstanding, constitutionally significant relationships with the United States …

Mmu: 11/28/22–12/04/22, Student Bar Association

Monday Morning Update

This Week @ NDLS

HOW TO ATTACK AN EXAM

CLS Prayer Meeting

2023 Summer Fellowship

Information Session: 2023 Program of Church, State & Society Summer Fellowship

Interview Workshop

Private Law Workshop

Mass Times

Commons Daily Menu

General Announcements

Kresge Law Library: Study Aids

Applying for the London Programme 2023/24

1L of the Week: McKenzie Brummond

2Ls Taking Ls: Lizzy Forzley

Ask a 3L: Julia Fissore-O'Leary

Sports Report by Stephen Nugent

Jackie's [Kamel] Corner

Ndls Communicator: Week Of 11.28.22, Notre Dame Law School

NDLS Communicator

The Latest News

• Notre Dame Law Review hosts symposium on 'Liberalism, Christianity, and Constitutionalism'
• Judge Theodor Meron delivers ND Law’s 2022 Peace Through Law Lecture in London
• DEI Podcast, Episode 3: Understanding Imposter Feelings
• The Religious Liberty Clinic represents Sikhs, Muslims, Bruderhof, and Jewish groups defending a Rastafarian inmate forcibly shaved bald
• Sadie Blanchard's article, "Contracts Without Courts or Clans: How Business Networks Govern Exchange" has been published in the Georgia Law Review.
• Randy Kozel's new paper, “Government Employee Speech and Forum Analysis” was published in the Journal of Free Speech and challenges the idea that free speech claims by …

Mmu: 11/21/22–11/27/22, Student Bar Association

Monday Morning Update

Note from the Editor

This Week @ NDLS

1L Registration

"How to Excel on Law School Exams" - Professor Panel for 1Ls

Mass Times

Commons Daily Menu

November 23 - November 27 Holiday Break

General Announcements

SBA Thanksgiving Food Drive

Notre Dame in Prison

Kresge Law Library: Research Assistant Opportunity

Law school students win intramural football championship

Ndls Communicator: Week Of 11.21.22, Notre Dame Law School

NDLS Communicator

The Latest News

• Dean G. Marcus Cole to be inducted into the American College of Bankruptcy
• Notre Dame Religious Liberty Clinic defends Muslim man denied permission to pray outside his cell
• Notre Dame Law Review published Volume 98, Issue 1: Jeff Pojanowski's co-authored book review, "Recovering Classical LegalConstitutionalism: A Critique of Professor Vermeule's New Theory" is published in the issue.
• Randy Kozel wrote a book review of Philip Hamburger's book, "Purchasing Submission: Conditions, Power, and Freedom."
• Mary Ellen O'Connell's article, “Twenty Years of Drone Attacks” was published by EJIL:Talk.
• Sam Bray spoke at Catholic University last week on the Influence …

Brief Amicus Curiae Of The Bruderhof, Clear, The Jewish Coalition For Religious Liberty, And The Sikh Coalition In Support Of Appellant, Stephanie Hall Barclay, Francesca Matozzo

Court Briefs

No. 22-30686
Damon Landor v. Louisiana Department of Corrections and Public Safety

Appeal from the United States District Court for the Middle District of Louisiana, No. 3:21-cv-733 The Honorable Shelly D. Dick, Chief Judge

From the Summary of the Argument

The Fifth Circuit should re-examine its precedent to allow for monetary damages for individual-capacity suits under the Religious Land Use and Institutionalized Persons Act (RLUIPA) for three reasons. First, RLUIPA’s text follows the same approach as 42 U.S.C. § 1983 and should be interpreted to afford the same types of broad remedies. Before Employment Division of Oregon v. Smith, …

Dean G. Marcus Cole To Be Inducted Into American College Of Bankruptcy, Kevin Allen

2019–Present: G. Marcus Cole

G. Marcus Cole, the Joseph A. Matson Dean and Professor of Law at Notre Dame Law School, will be inducted into the American College of Bankruptcy in recognition of his exceptional contributions to the bankruptcy and insolvency practice, the association announced on November 17.

Perma.cc

Twenty Years Of Drone Attacks, Mary Ellen O'Connell

NDLS in the News

On November 2, 2002, the United States conducted its first targeted killings using a drone. CIA agents based in Djibouti launched the drone’s two Hellfire missiles at a vehicle traveling in rural Yemen, killing six...

Mmu: 11/14/22–11/20/22, Student Bar Association

Monday Morning Update

This Week @ NDLS

Mass Times

Commons Daily Menu

General Announcements

1L of the Week: Alesondra Cruz

2Ls Taking Ls: Tori Hust

Ask a 3L: Andrew Scarafile

LLM Feature: Rose Higgins

Sports Report by Stephen Nugent

Jackie's [Kamel] Corner

Brief Amicus Curiae Of The Becket Fund For Religious Liberty, John A. Meiser, Francesca Matozzo

Court Briefs

No. 22-1876
Mohamed Solah Mohamed A Emad v. Dodge County

Appeal from the United States District Court for the Eastern District of Wisconsin, Honorable Lynn Adelman (19-cv-0598)

From the Summary of Argument

Cases concerning the expression of constitutional rights in prison settings often pose difficult questions regarding the appropriate balance between the government’s penological interests and the prisoner’s fundamental freedoms. This case does not. Mohamed Salah Ahmed Emad did not ask the Dodge County Detention Facility (nor does he ask this Court) to locate the appropriate degree to which a prison must accommodate a novel or historically unusual religious exercise. …

Ndls Communicator: Week Of 11.13.22, Notre Dame Law School

NDLS Communicator

The Latest News

• ND Law honors Professor Judy Fox and alumna Tia Paulette at the inaugural Rev. David T. Link Public Interest Banquet
• ND Law connects students and law firms at Meet the Employers Diversity Fellowship event
• 'Religious Liberty Issues in Healthcare' panelists offer insights on legal and cultural challenges in healthcare
• Sherif Girgis was quoted in the NRB article, "303 Creative Set to Be Heard by the Supreme Court."

Student News

• ND Law Moot Court Board hosts seventh annual religious freedom tournament
• Religious Liberty Student Cohort for 2022-2023 named

Events

• Monday, Nov. 14: SBA Thanksgiving Food Drive is happening …

Mmu: 11/07/22–11/13/22, Student Bar Association

Monday Morning Update

This Week @ NDLS

Mass Times

Commons Daily Menu

General Announcements

1L of the Week: Hadiah Mabry

2Ls Taking Ls: Sandy Weir

Ask a 3L: Laura Mahoney

LLM Feature: Porta Chigbu

Sports Report by Stephen Nugent

Jackie's Corner

Ndls Communicator: Week Of 11.07.22, Notre Dame Law School

NDLS Communicator

The Latest News

• Notre Dame Law Review hosts symposium on Unconstitutional Conditions and Religious Liberty
• Sadie Blanchard's paper, “Nominal Damages As Vindication,” was reviewed in Jotwell.
• Avishalom Tor's article, "Digital Nudging: Potential and Pitfalls," was published in the October 2022 issue of the CPI TechREG Chronicle.
• Jay Tidmarsh was quoted in the Billboard article, "One Year Later, The Massive Litigation Over Astroworld Is Just Getting Started."
• Nicole Garnett and Fr. Pat Reidy wrote “Religious Covenants” which explores the phenomenon of religiously motivated deed restrictions.
• Sherif Girgis was a panelist in a talk about free speech held at the US National …

The Centrality Of Data And Compute For Ai Innovation: A Blueprint For The National Research Cloud, Daniel E. Ho, Jennifer King, Russell C. Wald, Christopher Wan

Notre Dame Journal on Emerging Technologies

From the introduction: Artificial intelligence (AI) appears poised to transform the economy across sectors ranging from healthcare and finance to retail and education. What some have coined the “Fourth Industrial Revolution” is driven by three key trends: greater availability of data, increases in computing power, and improvements to algorithm design. First, increasingly large amounts of data have fueled the ability for computers to learn, such as by training an algorithmic language model on all of Wikipedia. Second, better computational capacity (often termed “compute”) and compute capability have enabled researchers to build models that were unimaginable merely ten years ago, spanning …

Note: Structured Psychometrics In Biglaw Talent Acquisition: Ai-Driven Quantitative Fit, Joseph J. Kim

Notre Dame Journal on Emerging Technologies

This Note combines a number of perspectives and disciplines to proffer a unique suggestion toward recognizing better talent and acquiring a new intraindustry competitive edge.

Deepfake Fight: Ai-Powered Disinformation And Perfidy Under The Geneva Conventions, David Nicholas Allen

Notre Dame Journal on Emerging Technologies

Deception and disinformation are as much a part of the battlefield as bullets and bombs. However, just like with bullets and bombs, if the law does not properly regulate a capability’s use the capability could degrade faith in the law. In this respect, this paper examines deepfake technology, a modern artificial intelligence-based capability that can generate superficially-perfect yet wholly invented media content. The paper looks ahead to its potential future applications in armed conflict, processes the ways in which current law contemplates such deception, and distills recommendations for improving governance where needed.

In Defense Of (Virtuous) Autonomous Weapons, Don Howard

Notre Dame Journal on Emerging Technologies

I will argue, we can construct effective means for norming the use of autonomous weapons short of a total ban by building upon the foundation of existing requirements stipulated in Article 36 of Protocol I to the Geneva Conventions that all new weapons technologies be reviewed for compliance with the International Law of Armed Conflict (ILOAC) and International Humanitarian Law (IHL). I begin with a critical review of several of the most commonly encountered arguments in favor of a ban. That is followed by a discussion of the moral opportunities afforded by enhanced autonomy. I conclude with a concrete policy …

Ethical Ai In American Policing, Elizabeth E. Joh

Notre Dame Journal on Emerging Technologies

We know there are problems in the use of artificial intelligence in policing, but we don’t quite know what to do about them. One can also find many reports and white papers today offering principles for the responsible use of AI systems by the government, civil society organizations, and the private sector. Yet, largely missing from the current debate in the United States is a shared framework for thinking about the ethical and responsible use of AI that is specific to policing. There are many AI policy guidance documents now, but their value to the police is limited. Simply repeating …

Note: Regulating Artificial Intelligence: A Call For A United States Artificial Intelligence Agency, Noah John Kahekili Rosenberg

Notre Dame Journal on Emerging Technologies

this Note draws upon two examples of emerging AI technologies that demonstrate the need for federal regulation: autonomous vehicles (i.e., self-driving cars) and algorithm-based hiring software. Part I illustrates the public safety concerns associated with AI technologies by outlining the inadequacy of existing laws and regulations on autonomous vehicles. Part II addresses the shortcomings of current regulations on algorithm-based hiring software and the issue of discrimination and inherent bias in AI. Part III recommends the creation of a new federal agency to guide AI regulation and enforcement.

Privacy Qui Tam, Peter Ormerod

Notre Dame Law Review

Privacy law keeps getting stronger, but surveillance-based businesses have proven immune to these new legal regimes. The disconnect between privacy law in theory and in practice is a multifaceted problem, and one critical component is enforcement.

Today, most privacy laws are enforced by governmental regulators—the Federal Trade Commission, the nascent California Privacy Protection Agency, and state attorneys general. An enduring impasse for proposed privacy laws is whether to supplement public enforcement by using a private right of action to authorize individuals to enforce the law.

Both of these conventional enforcement schemes have significant shortcomings. Public enforcement has proven inadequate because …

Rethinking Constitutionally Impermissible Punishment, Nadia Banteka, Erika Nyborg-Burch

Notre Dame Law Review Reflection

In this Essay, we discuss how the COVID-19 pandemic has affected our understanding of constitutionally permissible punishment. We argue, first, that the protracted failure to act by those who have had authority to do so during this public health emergency created a high risk that incarcerated people would suffer severe illness—and even death—in violation of due process protections and the Eighth Amendment prohibition against cruel and unusual punishment. Second, we suggest that a changed understanding of public safety in the context of detention and release during public health emergencies has the potential to shift the framework even after the emergency …

Speaking Of The Speech Or Debate Clause: Revising State Legislative Immunity, Shane Coughlin

Notre Dame Law Review Reflection

An increasing number of America’s most contentious issues will be resolved in state legislatures. Consequently, the ability of litigants to seek judicial review of a legislature’s actions is becoming more important. The scope of state legislative immunity, a federal common-law defense that provides state legislators with absolute immunity against certain lawsuits, will also increase in importance. A recent case involving New Hampshire’s legislature raises two significant questions about the scope of state legislative immunity. The first question entails how the United States Congress can abrogate the immunity, and the second question is whether legislators may claim the immunity when a …

Emergency-Docket Experiments, Edward L. Pickup, Hannah L. Templin

Notre Dame Law Review Reflection

This short Essay is the first to analyze the Court’s recent emer-gency-docket experiments and discuss their effectiveness. We conclude that the Court’s interventions have real benefits: giving emergency cases greater procedure improves transparency, boosts public confidence in the Court, and gives guidance to litigants and lower courts.

But experiments are often iterative—it is unusual to hit the right result the first time. So too with the Court’s emergency-docket tinkering. In tweaking its stay factors, the Justices have failed to give suffi-cient guidance to litigants about how those factors will apply in the future. Plus, in transferring Ramirez from the emergency …

Against Secondary Meaning, Jeanne C. Fromer

Notre Dame Law Review

Trademark law premises protection and scope of marks on secondary meaning, which is established when a mark develops sufficient association to consumers with a business as a source of goods or services in addition to the mark’s linguistic primary meaning. In recent years, scholars have proposed that secondary meaning plays an even more central role in trademark law than it already does. Yet enshrining secondary meaning in the law undermines the ultimate goals of trademark law: promoting fair competition and protecting consumers. The dangers of enshrining secondary meaning include the problematic doctrine that has built up to assess it or …

Remedying The Immortal: The Doctrine Of Accession And Patented Human Cell Lines, Julia E. Fissore-O'Leary

Notre Dame Law Review

Importantly, though this Note employs Henrietta Lacks as the illustrative, paradigmatic case for the theory of accession it proposes, accession can be, and should be, broadly construed to apply to all like-situated patients. Part I of this Note briefly explains the timeless human-body-as-property debate. Next, Part II addresses the concept of accession—its theoretical underpinnings, definitions, and amenability to this and other lawsuits. Part III applies accession to HeLa and develops a methodology for calculating damages in this unique setting. This Note does not pretend to present a perfectly wrought formula. Instead, it offers several possibilities for determining compensation. Finally, …

Notre Dame Lawyers Connect: November 2022, Notre Dame Law School

Notre Dame Lawyers Connect

Timothy Bradley ’20 J.D. to clerk for U.S. Supreme Court Justice Amy Coney Barrett

Class of 2022 builds on Law School’s strong tradition of securing clerkships

Alumni Spotlights - Chancellor Kathaleen McCormick, Delaware Court of Chancery

Law Homecoming Weekend

HLSA Alumni Banquet

Wrongful Convictions and the Death Penalty in America: A Fireside Chat with Sister Helen Prejean

Peace Through Law Lecture with Judge Theodor Meron

Alumni Notes

• Matthew Dornauer, ‘08 J.D.
• Shahzad “Shazzie” Naseem, ‘00 J.D.
• Judge Cristal Brisco, '06 J.D.
• Alex W. Karasik, ‘15 J.D.

The Moral Authority Of Original Meaning, J. Joel Alicea

Notre Dame Law Review

One of the most enduring criticisms of originalism is that it lacks a sufficiently compelling moral justification. Scholars operating within the natural law tradition have been among the foremost critics of originalism’s morality, yet originalists have yet to offer a sufficient defense of originalism from within the natural law tradition that demonstrates that these critics are mistaken. That task has become more urgent in recent years due to Adrian Vermeule’s critique of originalism from within the natural law tradition, which has received greater attention than previous critiques. This Article is the first full-length response to the natural law critique of …