Law Commons^™

Interpreting State Statutes In Federal Court, Aaron-Andrew P. Bruhl

Notre Dame Law Review

This Article addresses a problem that potentially arises whenever a federal court encounters a state statute. When interpreting the state statute, should the federal court use the state’s methods of statutory interpretation—the state’s canons of construction, its rules about the use of legislative history, and the like—or should the court instead use federal methods of statutory interpretation? The question is interesting as a matter of theory, and it is practically significant because different jurisdictions have somewhat different interpretive approaches. In addressing itself to this problem, the Article makes two contributions. First, it shows, as a normative matter, that federal courts …

Interring The Unitary Executive, Christine Kexel Chabot

Notre Dame Law Review

The President’s power to remove and control subordinate executive officers has sparked a constitutional debate that began in 1789 and rages on today. Leading originalists claim that the Constitution created a “unitary executive” President whose plenary removal power affords her “exclusive control” over subordinates’ exercise of executive power. Text assigning the President a removal power and exclusive control appears nowhere in the Constitution, however, and unitary scholars have instead relied on select historical understandings and negative inferences drawn from a supposed lack of independent regulatory structures at the Founding. The comprehensive historical record introduced by this Article lays this debate …

Religious Liberty And Judicial Deference, Mark L. Rienzi

Notre Dame Law Review

Many of the Supreme Court’s most tragic failures to protect constitutional rights—cases like Plessy v. Ferguson, Buck v. Bell, and Korematsu v. United States—share a common approach: an almost insuperable judicial deference to the elected branches of government. In the modern era, this approach is often called “Thayerism,” after James Bradley Thayer, a nineteenth-century proponent of the notion that courts should not invalidate actions of the legislature as unconstitutional unless they were clearly irrational. Versions of Thayerism have been around for centuries, predating Thayer himself.

The Supreme Court took a decidedly Thayerian approach to the First Amendment …

"A Sword In The Bed": Bringing An End To The Fusion Of Law And Equity, Brooks M. Chupp

Notre Dame Law Review

Those who called for the fusion of law and equity have, throughout the years, argued that the existence of a parallel court system for equity would be inefficient and confusing for parties. While there is limited merit to this viewpoint, the United States has been willing to create courts of limited jurisdiction to hear cases of a highly specialized or technical nature in other areas of the law (for example, tax and bankruptcy). This Note argues that the specialized-courts approach is viable as it relates to equity and that it is, in fact, preferable to the current system. This Note …

Recovering Classical Legal Constitutionalism: A Critique Of Professor Vermeule's New Theory, Jeffrey A. Pojanowski, Kevin C. Walsh

Notre Dame Law Review

This Review proceeds in three Parts. Part I briefly summarizes Common Good Constitutionalism and provides a more detailed description of four of the book’s distinctive features. Part II critiques Vermeule’s argument in light of the classical tradition’s four essential aspects of law, namely that it is an ordinance of reason, for the common good, made by one who has care of the community, and promulgated. Part III draws on those reflections to respond to Vermeule’s criticisms of work like ours that argues that original-law-based understandings of the Constitution are at home in the classical legal tradition. A Conclusion briefly reflects …

Mmu: 10/31/22–11/06/22, Student Bar Association

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Ndls Communicator: Week Of 10.31.22, Notre Dame Law School

NDLS Communicator

The Latest News

• Religious Liberty Clinic represents groups defending a Rastafarian inmate’s right to wear dreadlocks
• Commissioner Nury Turkel shares insights on the Uyghur genocide
• Exoneration Justice Clinic hosts Innocence Network Midwest Regional Summit
• Episode 2 of the DEI Podcast revisits a conversation with Black alumni leaders in the sports and entertainment industry from last month’s “Staying in the Game” panel discussion.
• Dean Cole meets with ND London Law Programme Faculty during a visit last week.
• Avishalom Tor give the keynote address, "The Law and Economics of Digital Nudging, Personalisation and Discrimination in a Fundamental Rights Perspective," at the Copenhagen …

Brief Of Professor Derek T. Muller In Support Of Applicant, Thomas R. Lee, John J. Nielsen, Tyler B. Lindley, Derek T. Muller

Court Briefs

No. 22A337
Senator Lindsey Graham v. Fulton County Special Purpose Grand Jury

On emergency application for a stay and injunction pending appeal from the United States Court of Appeals for the Eleventh Circuit

From the Introduction and Summary of Argument

The merits of this case are colored by partisan overtones. But the overarching legal questions implicate nonpartisan, institutional concerns. The Speech or Debate Clause has deep historical roots that protect important interests in legislative independence. That independence requires strong protection for legislative inquiry under an objective standard rooted in the facial basis for a particular investigation. If courts intrude on …

Brief Amicus Curiae Of The Bruderhof, Clear, Muslim Advocates, And The Sikh Coalition In Support Of Appellant, Stephanie Hall Barclay, Francesca Matozzo

Court Briefs

No. 22-2342
Thomas Walker v. John Baldwin

Appeal from the United States District Court for the Northern District of Illinois, Western Division, Honorable Iain D. Johnston (3:19-cv-50233)

From the Summary of the Argument

The Seventh 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, 494 U.S. 872 (1990), reduced the …

Brief For Amicus Curiae Professor Derek T. Muller In Support Of Respondents, Daniel M. Sullivan, Daniel M. Horowitz, Derek T. Muller

Court Briefs

No. 21-1271
Timothy K. Moore v. Rebecca Harper

On Writ of Certiorari to the Supreme Court of North Carolina

From the Summary of Argument

The petition for certiorari in this case presents the question whether the phrase “Legislature thereof” in the Elections Clause of the Constitution bars state courts from regulating the contours of Congressional redistricting pursuant to state constitutions. But Congress has spoken, too. It has regulated the manner of drawing congressional districts by federal statute. See 2 U.S.C. § 2c. Congressional redistricting in a State now takes place pursuant to this federal statutory directive, which contemplates a role …

Mmu: 10/24/22–10/30/22, Student Bar Association

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1L of the Week: Rania Khamees

2Ls Taking Ls: Jackie Muallem

Ask a 3L: Jensen Rehn!

LLM Feature: Faisal Yamil Meneses

Jackie's Corner

Does An Initial Public Offering (Ipo) Issuer's Securities And Exchange Commission Registration Fee Calculation Method Predict Pricing Revisions And Ipo Underpricing?, Patrick M. Corrigan

Journal Articles

This paper proposes a new proxy for the ex ante expectations of issuers and their underwriters about the direction of pricing revisions during the roadshows of an initial public offering (IPO): the way issuers elect to calculate the registration fees owed to the Securities and Exchange Commission. Consistent with fee-minimizing decision-making, I find that the choice of fee calculation method is associated with pricing revisions and IPO underpricing. This relationship suggests that issuers or their advisors may not incorporate economically significant private valuation information into the initial pricing range estimate and initial public offering price. The results provide empirical support …

Brief Of Amici Curiae Jewish Coalition For Religious Liberty, Islam & Religious Freedom Action Team Of The Religious Freedom Institute, And Notre Dame Law School Religious Liberty Clinic In Support Of Petitioners, John A. Meiser, Nicole Stelle Garnett

Court Briefs

No. 22-238
Charter Day School, Inc. v. Bonnie Peltier

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

From the Summary of Argument

The Fourth Circuit’s gross misapplication of state-action doctrine contradicts decades of precedent and expands the doctrine beyond its breaking point. If not corrected, that analysis would also endanger many vital public services provided by religious charitable groups and undermine this Court’s recent free-exercise cases in the process.

Mmu: 10/10/22–10/16/22, Student Bar Association

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1L of the Week: Victoria Bailey

2Ls Taking Ls: Alexandra Graves

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Ndls Communicator: Week Of 10.10.22, Notre Dame Law School

NDLS Communicator

The Latest News

• Notre Dame Law School awards endowed professorships to Randy Kozel and Sam Bray
• Careers in Religious Liberty panelists explore the intersection of law and faith
• Carter Snead co-wrote an amicus brief that examines pork production from philosophical, ethical, and theological perspectives.
• Diane Desierto spoke at the London Conference on International Law as part of the panel, "Human and collective security."
• Father John Paul Kimes preached at the Red Mass for the Diocese of Raleigh last week.

Student News

• ND Law students sweep International Moot Court Competition in Spain
• ND Law students participated in a day of service …

Mmu: 10/03/22–10/09/22, Student Bar Association

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1L of the Week: Emily Tlapek

2Ls Taking Ls: Athanasius Sirilla

Ask a 3L: Matt Lazarski

Sport Report by Stephen Nugent

Jackie's Corner

Ndls Communicator: Week Of 09.26.22, Notre Dame Law School

NDLS Communicator

The Latest News

• ND Law establishes new Murphy Fellowship for students studying law and religion
• Wrongful Convictions and the Death Penalty in America: Fireside Chat with Sister Helen Prejean and Dean Cole
• The Religious Liberty Clinic filed an amicus brief urging the Supreme Court to grant certiorari in Groff v. DeJoy.
• Emily Bremer writes, "Final Agency Action on Student Loan Forgiveness: Whether, When, and How Will (and Should) it Come?" for the Yale Journal of Regulation.
• Nicole Garnett wrote about Arizona's universal school choice decision in the article, "A Radical Step in the Right Direction" for the City-Journal."
• The Black …

Digital Nudging: Potentional And Pitfalls, Avishalom Tor

Journal Articles

From the Article

Digital nudges — that is, significantly behavioral interventions that use software and its user-interface design elements — are an increasingly pervasive feature of online environments that can shape people’s behavior both online (e.g. changing website cookie settings) and offline (e.g. taking a flu vaccine due to a text message reminder). While sharing many characteristics of offline behavioral interventions, digital nudges merit specific attention and analysis due to their growing ubiquity and potential potency, the opacity of their technological and behavioral mechanisms, and the central role of private actors in their implementation.

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

From the Summary of Argument

This case is an ideal vehicle for correcting 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: 09/26/22–10/02/22, Student Bar Association

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Message from your editor: Lizzy Forzley

1L of the Week: Manuela Correa

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Sport Report by Stephen Nugent

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Ndls Communicator: Week Of 09.26.22, Notre Dame Law School

NDLS Communicator

The Latest News

• Professor Avishalom Tor hosted the Consulate General of Switzerland in Chicago to discuss collaborative efforts
• Max Gaston has launched a new Diversity, Equity, and Inclusion podcast where he will explore the concepts of diversity, equity, inclusion, culture, belonging, unity, and creativity as they arise in law, culture, and society.
• Rick Garnett was on the Bloomberg Law podcast discussing the Supreme Court's response to Yeshiva University's legal fight over recognition of a campus LGBTQ student group.
• Lloyd Mayer was quoted by The Daily Beast in "Inside Shaun King’s Shadowy $6.7 Million Nonprofit."
• Sherif Girgis gave a Constitution Day …

Mmu: 09/19/22–09/25/22, Student Bar Association

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1L of the Week: Anna Basnaw

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Ndls Communicator: Week Of 09.19.22, Notre Dame Law School

NDLS Communicator

The Latest News

• Class of 2022 builds on Notre Dame Law School’s strong tradition of securing clerkships
• ND Law’s Religious Liberty Clinic supports the Buddhist association in Alabama land use case
• Charity law scholars from around the world will gather in London
• The Religious Liberty Clinic files an amicus brief supporting en banc review in Apache Stronghold v. United States
• Members of the Notre Dame Black Law Students Association share what the group means to them on campus and beyond.
• The Wrongful Conviction podcast tells the story of Andy Royer, the first ND Law Exoneration Justice Clinic client to be …

Notre Dame Law School Religious Liberty Initiative, Marcus Cole, Stephanie Barclay, Mona Polacca, Aly Cox, Paolo Carozza, John Meiser, Zahraa Nasser, Olivia Rogers, Rick Garnett

2019–Present: G. Marcus Cole

"I want Notre Dame to be a light for the people who are suffering darkness. I want this to be a place that people all around the world can see as a source of hope, where they can find people who are willing to fight for them, for their religious freedom and for their human flourishing." — Dean G. Marcus Cole, Notre Dame Law School

Learn more about Notre Dame Law School's Religious Liberty Initiative at https://law.nd.edu/RLI.

Notre Dame Black Law Students Association, Black Law Students Association, Notre Dame Law School

BLSA Videos

The Notre Dame Black Law Students Association (BLSA) was established in 1972 with a mission to increase the number of culturally responsible Black and minority attorneys who excel academically, succeed professionally, and influence the community positively.

Speakers in order of appearance: Honorable Roland W. Chamblee Jr., ’07; G. Marcus Cole, Joseph A. Matson Dean and Professor of Law; Monica Bell, Former BLSA President and third-year Notre Dame Law student; and Tristan Mullen, first-year Notre Dame Law student.

Learn more about the organization at https://law.nd.edu/BLSA.

Brief Of Amicus Curiae Notre Dame Law School Religious Liberty Clinic In Support Of Plaintiffs-Appellants, John A. Meiser, Francesca Genova Matozzo

Court Briefs

No. 22-11674
Thai Meditation Association of Alabama, Inc. v. City of Mobile, Alabama

Appeal from the United States District Court for the Southern District of Alabama No. 1:16-cv-00395

From the Summary of the Argument

This Court already corrected the district court’s errant understanding of RLUIPA’s substantial-burden analysis once in this case. Unfortunately, a second correction is needed now.

In Thai Meditation Association’s first appeal, this Court explained that “the district court misread our opinion in Midrash” and, as a consequence, had erroneously required the Association to show that the government “completely prevent[ed]” its religious exercise in order to demonstrate …

Brief Amicus Curiae Of The National Congress Of American Indians, A Tribal Elder, The International Council Of Thirteen Indigenous Grandmothers, And The Mica Group Supporting Plaintiff-Appellant And En Banc Rehearing, Stephanie Hall Barclay, Francesca Matozzo

Court Briefs

No. 21-15295
Apache Stronghold v. United States of America

Appeal from the United States District Court for the District of Arizona, Honorable Steven P. Logan (2:21-cv-00050-PHX-SPL)

From the Summary of the Argument

Meaningful access to sacred sites such as Oak Flat is an indispensable part of many Indigenous tribes’ religious exercise. Nonetheless, the government has repeatedly denied necessary access and even destroyed such sites, thus thwarting the ability of tribal members to exercise core aspects of their spiritual practices. The tribal members in this case face the same fate.

Mmu: 09/12/22–09/18/22, Student Bar Association

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1L of the Week: Bailie Sirhall

2Ls Taking Ls: Sachit Shrivastav

Ask a 3L: Cole Craghan

Sport Report by Stephen Nugent

Jackie's Corner

Ndls Communicator: Week Of 09.12.22, Notre Dame Law School

NDLS Communicator

The Latest News

• Fighting to Educate a Different Kind of Lawyer
• Program on Church, State & Society announces Stefan McDaniel to serve as first Rodes Fellow
• Christine Venter was the 2021 recipient of the Teresa Godwin Phelps Award for Scholarship in Legal Communication.
• Jeff Pojanowski's paper "Authenticity and Free Speech" was published in the Law and Religion Forum (St. John's Law School Center for Law and Religion).
• Patrick Corrigan co-organized a conference, London Law and Finance Symposium, as part of the Global Lawyering Initiative at the London Global Gateway on September 9. Patrick and Maria Maciá both presented at the …

Ndls Communicator: Week Of 09.06.22, Notre Dame Law School

NDLS Communicator

The Latest News

• Professors Matt Barrett and Judy Fox retire from ND Law
• Death penalty abolitionist Sister Helen Prejean to speak at Notre Dame
• Law School’s Office of Admissions eliminates early decision application program
• Marcus Cole was the keynote speaker at the Brigham Young University Founder's Day Keynote dinner.
• Lloyd Maher was on NPR's Morning Edition talking about whether a non-profit charity is violating tax law.
• Phillip Muñoz has published a new book, "Religious Liberty and the American Founding."
• Rick Garnett discusses substantive due process and parental rights in the Pierce v. Society of Sisters case.

Alumni News

• Ballfield to …