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Notre Dame Law School

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Full-Text Articles in Law

Regulating Charitable Crowdfunding, Lloyd Hitoshi Mayer Jan 2022

Regulating Charitable Crowdfunding, Lloyd Hitoshi Mayer

Journal Articles

Charitable crowdfunding is a global and rapidly growing new method for raising money to benefit charities and individuals in need. While mass fundraising has existed for more than a hundred years, crowdfunding is distinguishable from those earlier efforts because of its low cost, speed of implementation, and broad reach. Reflecting these advantages, it now accounts annually for
billions of dollars raised from tens of millions of donors through hundreds of Internet platforms such as Charidy, Facebook, GoFundMe, and GlobalGiving. Although most charitable crowdfunding campaigns raise only modest amounts, every year several efforts attract tens of millions of dollars in donations. …


The Bipartisan Consensus On Big Tech, Roger P. Alford Jan 2022

The Bipartisan Consensus On Big Tech, Roger P. Alford

Journal Articles

This Article contends that there is an emergent bipartisan consensus that Big Tech has grown too powerful and that action must be taken to address its abuse of power. That action takes the form of a variety of legislative proposals to enhance government enforcement powers, reform the merger laws, and address self-preferencing, data portability, and interoperability. Litigation efforts focus on Facebook and Google’s abuse of monopoly power, particularly with respect to Facebook’s elimination of competition through acquisitions and Google’s abuse of monopoly power in search and display advertising. While we are in the midst of one of the most divisive …


Equity, Law And The Seventh Amendment, Samuel Bray Jan 2022

Equity, Law And The Seventh Amendment, Samuel Bray

Journal Articles

The Seventh Amendment requires that the civil jury trial right be “preserved” in “Suits at common law.” Those bits of constitutional text have long set the justices on a path of historical reconstruction. For roughly two centuries, the Supreme Court has determined the scope of the civil jury trial right in federal court by reference to historic English courts. But no one is happy with the current test. In one widely used variant, it requires an inquiry into analogous 1791 actions, followed by an inquiry into the legal or equitable provenance of the remedy sought, and then a weighing that …


On Foxes And Hedgehogs, Roger P. Alford Jan 2022

On Foxes And Hedgehogs, Roger P. Alford

Journal Articles

This Article is about John Nagle’s many means to one great end. It will outline the many themes of his scholarship: (i) environmental law, (ii) statutory interpretation, (iii) constitutional law, (iv) nuisance and pollution, (v) election law and campaign finance, (vi) Christianity and the environment, and (vii) national parks. It will offer conclusions on how he used his scholarly interests as a means to pursue his overarching worldview.


A Critical Problem Needing A Bolder Solution?: A Response To Atinuke O. Adediran's "Nonprofit Board Composition", Lloyd Hitashi Mayer Jan 2022

A Critical Problem Needing A Bolder Solution?: A Response To Atinuke O. Adediran's "Nonprofit Board Composition", Lloyd Hitashi Mayer

Journal Articles

The governing boards of nonprofit organizations, and particularly of nonprofits that serve low income and other vulnerable populations, fail to adequately include the populations that they serve. At least this is the common understanding among people familiar with these boards. Professor Atinuke Adediran not only confirms the existence of this problem but clarifies it in four important ways. Professor Adediran also proposes concrete steps to address it; although, the clarity she has brought to the problem raises the question of whether she could have been bolder in her proposed solutions.

The clarity comes from new data, careful consideration of previous …


Preventing Emissions From Slipping Through The Cracks: How Collaboration On New Technologies To Detect Violations And Minimize Emissions Can Efficiently Enforce Existing Clean Air Act Regulations, Kathryn Caballero Jan 2022

Preventing Emissions From Slipping Through The Cracks: How Collaboration On New Technologies To Detect Violations And Minimize Emissions Can Efficiently Enforce Existing Clean Air Act Regulations, Kathryn Caballero

Journal Articles

The link between air pollution and poor public health is well known and has been farther documented during the COVID-19 pandemic, 1 but EPA has outdated methods and rules to detect air emissions. Enforcing existing environmental regulations presents challenges because the detection and monitoring technologies identified in the regulations, or the regulation language itself, may not sufficiently identify environmental pollution, let alone complex environmental fraud. How can EPA best use new technologies and concepts to detect violations, with the intent of minimizing emissions, to improve human health and environmental outcomes during the lengthy process of drafting and publishing new regulations? …


Getting Into Equity, Samuel Bray, Paul Miller Jan 2022

Getting Into Equity, Samuel Bray, Paul Miller

Journal Articles

For two centuries, common lawyers have frequently talked about a “cause of action.” But “cause of action” is not an organizing principle for equity. This Article shows how a plaintiff gets into equity, and it shows equity is shaped by the interplay of its remedial, procedural, and substantive law. Equity is adjectival, related to law rather than the other way around. Remedies, not rights, are what give it power. And for getting into equity, it is the grievance that is central. To insist on an equitable cause of action is to work a fundamental change in how a plaintiff gets …


John Copeland Nagle: A Man For All Seasons, Patricia O'Hara Jan 2022

John Copeland Nagle: A Man For All Seasons, Patricia O'Hara

Journal Articles

Many fine law schools have faculty members who are outstanding teachers, preeminent scholars, and generous colleagues. Few law schools are as blessed as we were at Notre Dame to have someone as singular as John Copeland Nagle—a person who was all those things professionally, but who was also a man without self-serving ego or guile; a man possessed of a moral compass that made him "true north" to so many of us; a person who consistently acted out of charity in an effort to do the right thing in all things.

John was genuine, authentic, self-giving, and humble with every …


Humility, Climate Change, And The Pursuit Of Scientific Truth, John Nagle Jan 2022

Humility, Climate Change, And The Pursuit Of Scientific Truth, John Nagle

Journal Articles

This Essay begins with the understanding that environmental law could not exist without science. The tolerable amount of pollution, the proximity of a species to extinction, and the threats presented by climate change are just some of the questions that environmental law depends on science to answer. Often environmental law insists that science alone is relevant to a particular regulatory action, such as an air pollution standard or an endangered species listing. It is not surprising, therefore, that many disputes about environmental law are really disputes about science.

Science, however, does not always yield the information that environmental law needs …


Bon Voyage, My Friend, Amy Coney Barrett Jan 2022

Bon Voyage, My Friend, Amy Coney Barrett

Journal Articles

I met John in the fall of 2000, when he traveled to Washington to recruit new faculty at the annual hiring conference. Although I was not then on the teaching market, John heard that I intended to enter it in a year or two. He invited me to have coffee to discuss my plans, and so began a friendship that spanned nearly twenty years.

John wore many hats in the course of our relationship: mentor, colleague, co-author, and treasured friend.

Rather than putting his resources into himself, John put them into his family, friends, church, and work. And in each …


Who Is Wise Among You?, Bruce R. Huber Jan 2022

Who Is Wise Among You?, Bruce R. Huber

Journal Articles

No abstract provided.


Well Done, Good And Faithful Servant, Nicole Stelle Garnett, Richard Garnett Jan 2022

Well Done, Good And Faithful Servant, Nicole Stelle Garnett, Richard Garnett

Journal Articles

This essay is an appreciation, remembrace, and tribute, written for our friend and colleague, John Copeland Nagle.


Alleged Violations Of The 1955 Treaty Of Amity, Economic Relations, And Consular Rights (Iran V. U.S.) (Judgment On Preliminary Objections) (I.C.J.), Diane A. Desierto Jan 2022

Alleged Violations Of The 1955 Treaty Of Amity, Economic Relations, And Consular Rights (Iran V. U.S.) (Judgment On Preliminary Objections) (I.C.J.), Diane A. Desierto

Journal Articles

On February 3, 2021, the International Court of Justice delivered its judgment on preliminary objections in Alleged Violations of the 1955 Treaty of Amity, Economic Relations, and Consular Rights (Islamic Republic of Iran v. United States of America). The judgment rejected all of the United States’ preliminary objections, declared the admissibility of Iran's Application, and held that the Court has jurisdiction “on the basis of Article XXI, paragraph 2 of the Treaty of Amity, Economic Relations, and Consular Rights of 1955.”


Advisory Opinions And The Problem Of Legal Authority, Christian Burset Jan 2021

Advisory Opinions And The Problem Of Legal Authority, Christian Burset

Journal Articles

The prohibition against advisory opinions is fundamental to our understanding of federal judicial power, but we have misunderstood its origins. Discussions of the doctrine begin not with a constitutional text or even a court case, but a letter in which the Jay Court rejected President Washington’s request for legal advice. Courts and scholars have offered a variety of explanations for the Jay Court’s behavior. But they all depict the earliest Justices as responding to uniquely American concerns about advisory opinions. This Article offers a different explanation. Drawing on previously untapped archival sources, it shows that judges throughout the anglophone world—not …


The Mischief Rule, Samuel L. Bray Jan 2021

The Mischief Rule, Samuel L. Bray

Journal Articles

The mischief rule tells an interpreter to read a statute in light of the “mischief” or “evil”—the problem that prompted the statute. The mischief rule has been associated with Blackstone’s appeal to a statute’s “reason and spirit” and with Hart-and-Sacks-style purposivism. Justice Scalia rejected the mischief rule. But the rule is widely misunderstood, both by those inclined to love it and those inclined to hate it. This Article reconsiders the mischief rule. It shows that the rule has two enduringly useful functions: guiding an interpreter to a stopping point for statutory language that can be given a broader or narrower …


Dissenting From The Bench, Christine Venter Jan 2021

Dissenting From The Bench, Christine Venter

Journal Articles

This paper examines the oral dissents of Justices Antonin Scalia and Ruth Bader Ginsburg from the year 2000 to the times of their respective deaths. It explores the concept and purpose of oral dissent and details the kinds of cases in which each justice was more likely to orally dissent. The paper analyzes the kinds of rhetoric that each justice used to refer to their subject matter, and argues that Scalia's rhetoric evinces a view of the law as "autonomous", operating independently of the facts of the case. In contrast, Ginsburg's view espouses a view of the law as responsive …


Human Dignity Has No Borders: Respecting The Rights Of "People On The Move" And The Rights And Religious Freedom Of Those Who Aid Them, Christine Venter Jan 2021

Human Dignity Has No Borders: Respecting The Rights Of "People On The Move" And The Rights And Religious Freedom Of Those Who Aid Them, Christine Venter

Journal Articles

No abstract provided.


Fashion's Brand Heritage, Cultural Heritage, And The Piracy Paradox, Felicia Caponigri Jan 2021

Fashion's Brand Heritage, Cultural Heritage, And The Piracy Paradox, Felicia Caponigri

Journal Articles

This Article explores the role that heritage has on our understanding of the appropriateness of intellectual property protection for fashion designs in light of Christopher Sprigman and Kal Raustiala’s seminal work in The Piracy Paradox. At times, heritage seems to both reinforce Sprigman and Raustiala’s argument that fashion thrives in a low-IP regime and, at other times, heritage challenges that argument. Taking Italian fashion design as a case study, this Article considers the intersection of brand heritage, cultural heritage, and intellectual property law and makes three central observations. First, that fashion designs reflecting brand heritage thrive in a low-IP regime. …


Rethinking Protections For Indigenous Sacred Sites, Stephanie H. Barclay, Michalyn Steele Jan 2021

Rethinking Protections For Indigenous Sacred Sites, Stephanie H. Barclay, Michalyn Steele

Journal Articles

Meaningful access to sacred sites is among the most important principles to the religious exercise of Indigenous peoples, yet tribes have been repeatedly thwarted by the federal government in their efforts to vindicate this practice of their religion. The colonial, state, and federal governments of this Nation have been desecrating and destroying Native American sacred sites since before the Republic was formed. Unfortunately, the callous destruction of Indigenous sacred sites is not just a troubling relic of the past. Rather, the threat to sacred sites and cultural resources continues today in the form of spoliation from development, as well as …


Negative-Value Property, Bruce R. Huber Jan 2021

Negative-Value Property, Bruce R. Huber

Journal Articles

Ownership is commonly regarded as a powerful tool for environmental protection and an essential solution to the tragedy of the commons. But conventional property analysis downplays the possibility of negative-value property, a category which includes contaminated, depleted, or derelict sites. Owners have little incentive to retain or restore negative-value property and much incentive to alienate it. Although the law formally prohibits the abandonment of real property, avenues remain by which owners may functionally abandon negative-value property, as demonstrated recently by busts in certain coal and oil & gas markets. When negative-value property is abandoned, whether formally or functionally, the rehabilitation …


Litigation Analytics: A Framework For Understanding, Using & Teaching, Peter A. Hook Jan 2021

Litigation Analytics: A Framework For Understanding, Using & Teaching, Peter A. Hook

Journal Articles

This article, appearing in the American Association of Law Libraries bimonthly member magazine, provides a brief introduction (under 2000 words) to litigation analytics. It contains a definition, common uses of litigation analytics, a brief history, as well as why litigation analytics should be taught in law school. The author provides his framework for teaching and understanding litigation analytics which includes types of analytics, pivot points (perspectives from which the analytics may be understood), and contextualizes the various analytics offerings by insight-needs categories: (1) categorizing and clustering; (2) ordering, ranking, and sorting; (3) distribution; (4) comparison; (5) trends; (6) geospatial location; …


Keeping Up With New Legal Titles, Susan Azyndar, Susan David Demaine Jan 2021

Keeping Up With New Legal Titles, Susan Azyndar, Susan David Demaine

Journal Articles

A book review column featuring recent titles related to law and/or librarianship.


The High Cost Of Eviction: Struggling To Contain A Growing Social Problem, Judith Fox Jan 2021

The High Cost Of Eviction: Struggling To Contain A Growing Social Problem, Judith Fox

Journal Articles

Matthew Desmond’s Pulitzer Prize winning book, focused public attention on the issue of eviction. As a result, scholars have begun to investigate and challenge some of the assumptions made in the book. Primarily, is eviction the cause of poverty or one of its consequences? This article explores several options in an attempt to explain the high number of evictions in America. These include, among others, the lack of affordable housing, failed governmental policies, the rise of institutional landlords and the role of courts. The article highlights some interventions that have begun to show progress in easing the burden of eviction. …


On Being First, On Being Only, On Being Seen, On Charting A Way Forward, Veronica Root Martinez Jan 2021

On Being First, On Being Only, On Being Seen, On Charting A Way Forward, Veronica Root Martinez

Journal Articles

This Essay reflects upon my professional experiences as a Black woman both at Notre Dame and beyond. It argues that it is important for students to have demographically diverse professors within their educational environments. It calls for the Notre Dame Law School community to continue to create a diverse, equitable, and inclusive culture.


Moral Truth And Constitutional Conservatism, Gerard V. Bradley Jan 2021

Moral Truth And Constitutional Conservatism, Gerard V. Bradley

Journal Articles

Conservative constitutionalism is committed to "originalism," that is, to interpreting the Constitution according to its original public understanding. This defining commitment of constitutional interpretation is sound. For decades, however, constitutional conservatives have diluted it with a methodology of restraint, a normative approach to the judicial task marked by an overriding aversion to critical moral reasoning. In any event, the methodology eclipsed originalism and the partnership with moral truth that originalism actually entails. Conservative constitutionalism is presently a melange of mostly unsound arguments against the worst depredations of Casey's Mystery Passage.

The reason for the methodological moral reticence is easy to …


What Is Caesar's, What Is God's: Fundamental Public Policy For Churches, Lloyd Histoshi Mayer, Zachary B. Pohlman Jan 2021

What Is Caesar's, What Is God's: Fundamental Public Policy For Churches, Lloyd Histoshi Mayer, Zachary B. Pohlman

Journal Articles

Bob Jones University v. United States is both a highly debated Supreme Court decision and a rarely applied one. Its recognition of a contrary to fundamental public policy doctrine that could cause an otherwise tax-exempt organization to lose its favorable federal tax status remains highly controversial, although the Court has shown no inclination to revisit the case and Congress has shown no desire to change the underlying statutes to alter the case’s result. That lack of action may be in part because the IRS applies the decision in relatively rare and narrow circumstances.

The mention of the decision during oral …


Reevaluating Legal Theory, Jeffrey Pojanowski Jan 2021

Reevaluating Legal Theory, Jeffrey Pojanowski

Journal Articles

Must a good general theory of law incorporate what is good for persons in general? This question has been at the center of methodological debates in general jurisprudence for decades. Answering “no,” Julie Dickson’s book Evaluation and Legal Theory offered both a clear and concise conspectus of positivist methodology, as well as a response to the longstanding objection that such an approach has to evaluate the data it studies rather than simply describe facts about legal systems. She agreed that legal positivism must evaluate. At the same time, she argued, it is possible to offer an evaluative theory of the …


The Judicial Reforms Of 1937, Barry Cushman Jan 2020

The Judicial Reforms Of 1937, Barry Cushman

Journal Articles

The literature on reform of the federal courts in 1937 understandably focuses on the history and consequences of President Franklin D. Roosevelt’s ill-fated proposal to increase the membership of the Supreme Court. A series of decisions declaring various components of the New Deal unconstitutional had persuaded Roosevelt and some of his advisors that the best way out of the impasse was to enlarge the number of justiceships and to appoint to the new positions jurists who would be “dependable” supporters of the Administration’s program. Yet Roosevelt and congressional Democrats also were deeply troubled by what they perceived as judicial obstruction …


Attribution And Other Conditions Of Lawful Countermeasures To Cyber Misconduct, Mary Ellen O'Connell Jan 2020

Attribution And Other Conditions Of Lawful Countermeasures To Cyber Misconduct, Mary Ellen O'Connell

Journal Articles

State cyber misconduct is on the rise, and it can be difficult to differentiate between malicious governmental cyber conduct and active cyber defense. Though some argue that cyberspace is a law-free zone, offensive cyberattacks are almost always unlawful regardless of their purpose. This Article contends that international law can provide for legal boundaries in cyberspace and analogizes cyber misconduct to government actions such as espionage. So long as conditions provided by international law (such as notice, necessity, and proportionality) are met, countermeasures to malicious cyber operations are generally lawful. Cases of urgency may be an exception to this general rule …


Untangling Entanglement, Stephanie H. Barclay Jan 2020

Untangling Entanglement, Stephanie H. Barclay

Journal Articles

The Court has increasingly signaled its interest in taking a more historical approach to the Establishment Clause. And in its recent American Legion decision, the Supreme Court strongly suggested that the three-prong Lemon test is essentially dead letter. Such a result would make sense for the first two prongs of the Lemon test about secular purpose and the effects. Many scholars have observed that these aspects of the prong are judicial creations far afield of the Establishment Clause history. But what of the entanglement prong of the test? If we rejected all applications of this prong of the analysis, would …