Law Commons^™

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 …

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 …

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.”

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 …

The Undemocratic Roots Of Agency Rulemaking, Emily S. Bremer

Journal Articles

Americans often credit—or blame—Congress for the laws and policies that govern their lives. But Congress enacts broad statutes that give federal administrative agencies the primary responsibility for making and enforcing the regulations that control American society. These administrative agencies lack the political accountability of those in public office. To address this democratic deficit, an agency seeking to adopt a new regulation must publish a notice of proposed rulemaking and provide an opportunity for the public to comment on the proposal. Heralded as “one of the greatest inventions of modern government,” the Administrative Procedure Act’s (APA) notice-and-comment rulemaking procedure is understood …

Taking Justification Seriously: Proportionality, Strict Scrutiny, And The Substance Of Religious Liberty, Stephanie H. Barclay, Justin Collings

Journal Articles

Last term, five Justices on the Supreme Court flirted with the possibility of revisiting the Court’s First Amendment test for when governments must provide an exemption to a religious objector. But Justice Barrett raised an obvious, yet all-important question: If the received test were to be revised, what new test should take its place? The competing interests behind this question have be-come even more acute in light of the COVID-19 pandemic. In a moment rife with lofty rhetoric about religious liberty but riven by fierce debates about what it means in practice, this Article revisits a fundamental question common to …

When Should Governments Invest More In Nudging? Revisiting Benartzi Et Al. (2017), Avishalom Tor, Jonathan Klick

Journal Articles

Highly influential recent work by Benartzi et al. (2017) argues—using comparisons of effectiveness and costs—that behavioral interventions (or nudges) offer more cost-effective means than traditional regulatory instruments for changing individual behavior to achieve desirable policy goals. Based on this finding, these authors further conclude that governments and other organizations should increase their investments in nudging to supplement traditional interventions. Yet a closer look at Benartzi et al.’s (2017) own data and analysis reveals that they variously exclude and include key cost elements to the benefit of behavioral instruments over traditional ones and overstate the utility of cost-effectiveness analysis for policy …

Mapping Racial Capitalism: Implications For Law, Carmen G. Gonzalez, Athena D. Mutua

Journal Articles

The theory of racial capitalism offers insights into the relationship between class and race, providing both a structural and a historical account of the ways in which the two are linked in the global economy. Law plays an important role in this. This article sketches what we believe are two key structural features of racial capitalism: profit-making and race-making for the purpose of accumulating wealth and power. We understand profit-making as the extraction of surplus value or profits through processes of exploitation, expropriation, and expulsion, which are grounded in a politics of race-making. We understand race-making as including racial stratification, …

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 …

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.

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 Law And Economics Of Behavioral Regulation, Avishalom Tor

Journal Articles

This article examines the law and economics of behavioral regulation (“nudging”), which governments and organizations increasingly use to substitute for and complement traditional instruments. To advance its welfare-based assessment, Section 1 examines alternative nudging definitions and Section 2 considers competing nudges taxonomies. Section 3 describes the benefits of nudges and their regulatory appeal, while Section 4 considers their myriad costs—most notably the private costs they generate for their targets and other market participants. Section 5 then illustrates the assessment of public and private welfare nudges using cost-benefit analysis, cost-effectiveness analysis, and rationality-effects analysis.

A New Report Of Entick V. Carrington (1765), Christian Burset, T. T. Arvind

Journal Articles

The Supreme Court has described Entick v. Carrington (1765) as “the true and ultimate expression of constitutional law” for the Founding generation. For more than 250 years, judges and commentators have read that case for guidance about the rule of law, executive authority, and the original meaning of the Fourth and Fifth Amendments. But we have been reading a flawed version. This Article publishes, for the first time, a previously unknown manuscript report of Entick v. Carrington. We explain why this version is more reliable than other reports of the case, and how this new discovery challenges prevailing assumptions about …

Faith In Elections, Derek T. Muller

Journal Articles

Americans may be suffering a crisis of faith. But not necessarily a crisis of religious faith. Instead, it is a crisis of faith in elections.

This language of faith in elections—do we have faith, are we losing faith, can we restore faith—pervades our political discourse and suggests religious imagery. Examples only scratch the surface of the language of faith in elections, democracy, and the American ideal. The language is seemingly everywhere. Words, of course, take on different meanings in different contexts. But the choice to use the word faith does appear to deliberately invoke religious imagery. Words like trust, confidence, …

Judicial Populism, Anya Bernstein, Glen Staszewski

Journal Articles

Populism has taken center stage in discussions of contemporary politics. This Article details a judicial populism that resonates with political populism’s tropes, mirrors its traits, and enables its practices. Like political populism, judicial populism insists there are clear, correct answers to complex, debatable problems, treating reasonable disagreement as illegitimate. It disparages the institutions that mediate divergent interests in a republican democracy, claiming special access to the law’s clear objective meaning. And it imagines a pure, unified people locked in battle with a subversive elite.

While commentators have recognized political populism as fundamentally undemocratic, judicial populism has largely escaped recognition and …

The Ostensible (And, At Times, Actual) Virtue Of Deference, Anthony O'Rourke

Journal Articles

In Rethinking Police Expertise, Anna Lvovsky exposes how litigators leverage judicial understandings of police expertise against the government. The article is rich not only with descriptive insights, but also with normative potential. By rigorously analyzing the relationship between expertise and authority in specific cases, Professor Lvovsky offers guidance as to how judges and lawyers should factor a police officer’s expertise into an assessment of whether the officer’s conduct is lawful. This Response argues, however, that Rethinking Police Expertise’s normative potential is weakened by the sharp conceptual distinction it draws between judicial understandings of expertise as a “professional virtue” (which it …

Federalism And The Limits Of Subnational Political Heterogeneity, James A. Gardner

Journal Articles

With an epidemic of democratic backsliding now afflicting many of the world’s democracies, including the United States, some scholars have suggested that federalism might serve as a useful defense for liberal democracy by impeding the ability of an authoritarian central government to stamp it out at the subnational level. In this Essay, I dispute that contention. An examination of both federal theory on one hand and the behavior and tactics of central control employed by ancient and early modern empires on the other leads to the conclusion that the protective value of federalism against the effects of national authoritarianism is …

Legal Corpus Linguistics And The Half-Empirical Attitude, Anya Bernstein

Journal Articles

Legal writers have recently turned to corpus linguistics to interpret legal texts. Corpus linguistics, a social-science methodology, provides a sophisticated way to analyze large data sets of language use. Legal proponents have touted it as giving empirical grounding to claims about ordinary language, which pervade legal interpretation. But legal corpus linguistics cannot deliver on that promise because it ignores the crucial contexts in which legal language is produced, interpreted, and deployed.

First, legal corpus linguistics neglects the relevant legal context—the conditions that give legal language authority. Because of this, legal corpus studies’ evidence about language use perversely obscures and misstates …

The Illiberalization Of American Election Law: A Study In Democratic Deconsolidation, James A. Gardner

Journal Articles

For many years, the dominant view among American election law scholars has been that the U.S. Supreme Court’s constitutional jurisprudence of democratic practice got off to a promising start during the mid-twentieth century but has since then slowly deteriorated into incoherence. In light of the United States’ recent turn toward populist authoritarianism, that view needs to be substantially revised. With the benefit of hindsight, it now appears that the Supreme Court has functioned, in its management of the constitutional jurisprudence of democracy, as a vector of infection—a kind of super-spreader of populist authoritarianism.

There is, sadly, nothing unusual these days …

What Counts As Data?, Anya Bernstein

Journal Articles

We live in an age of information. But whether information counts as data depends on the questions we put to it. The same bit of information can constitute important data for some questions, but be irrelevant to others. And even when relevant, the same bit of data can speak to one aspect of our question while having little to say about another. Knowing what counts as data, and what it is data of, makes or breaks a data-driven approach. Yet that need for clarity sometimes gets ignored or assumed away. In this essay, I examine what counts as data in …

Firing Employment At Will And Discharging Termination Claims From Employment Discrimination: A Cooperative Federalism Approach To Improve Employment Law, William Corbett

Journal Articles

The article focuses on employment at will and employment discrimination law-and explores how each encroaches upon and weakens the other. It mentions federal-state cooperative approach to "firing" employment at will and discharging termination claims from the federal employment discrimination laws. It also mentions cooperative federalism approach to improve employment law and basics of a wrongful discharge statute.

Corporate Governance Gaming: The Collective Power Of Retail Investors, Christina M. Sautter, Sergio Alberto Gramitto Ricci

Journal Articles

The GameStop saga and meme stock frenzy have shown the pathway to the most disruptive revolution in corporate governance of the millennium. New generations of retail investors use technologies, online forums, and gaming dynamics to coordinate their actions and obtain unprecedented results. Signals indicate that these investors, whom we can dub wireless investors, are currently expanding their actions to corporate governance. Wireless investors' generational characteristics suggest that they will use corporate governance to pursue social and environmental causes. In fact, wireless investors can set in motion asocial movement able to bring business corporations to serve their original partly-private-partly-public purpose. This …

Fake, Andrea M. Matwyshyn, Miranda Mowbray

Journal Articles

The Internet today is full of fake people and fake information. Trust in both technology and institutions is in a downward spiral. This Article offers a novel comprehensive framework for calibrating a legal response to technology “fakery” through the lens of information security. Introducing the problems of Internet “MIST”—manipulation, impersonation, sequestering, and toxicity—it argues that these MIST challenges threaten the future viability of the Internet through two morphed dynamics destructive to trust. First, the arrival of the Internet-enabled “long con” has combined traditional con artistry with enhanced technological capability for data collection. Second, the risk of a new “PSYOP industrial …

The Constitutionalization Of Parole: Fulfilling The Promise Of Meaningful Review, Alexandra Harrington

Journal Articles

Almost 12,000 people in the United States are serving life sentences for crimes that occurred when they were children. For most of these people, a parole board will determine how long they will actually spend in prison. Recent Supreme Court decisions have endorsed parole as a mechanism to ensure that people who committed crimes as children are serving constitutionally proportionate sentences with a meaningful opportunity for release. Yet, in many states across the country, parole is an opaque process with few guarantees. Parole decisions are considered “acts of grace” often left to the unreviewable discretion of the parole board.

This …

Composition Over Division: The Statutes Of The National Forest System, Jamison Colburn

Journal Articles

Most crises like those facing the National Forest System (NFS) have complex origins. But few of them result from as vast or as tangled a range of causes as do those facing the NFS. Appropriations to fight the wildfires now consuming our forests and choking the West have steadily grown, far outpacing inflation for a generation now. Timber and other commodity production has remained at historic lows for as long. And biodiversity conservation measures cannot gain the acquiescence of different constituencies long enough to withstand the inevitable lawsuits or turnover in administrative personnel. If Congress originally expected that judicial oversight …

Legal Positivism As A Theory Of Law’S Existence: A Comment On Margaret Martin’S "Judging Positivism", Jorge Luis Fabra-Zamora

Journal Articles

This comment critically examines the conception of legal positivism that informs Margaret Martin’s interesting and multilayered challenge against the substance and method of this intellectual tradition. My central claim is that her characterization of the substantive theory of legal positivism sets aside a more fundamental and explanatory prior dimension concerning the positivist’s theory of the existence of legal systems and legal norms. I also argue that her understanding of the positivist’s descriptive methodology as a nonnormative project is too demanding and overlooks both the relationships between law and morality recognized by contemporary legal positivists and the pivotal distinction between internal …

Seeking Tax Justice For Undocumented Immigrant Workers, Jacqueline Lainez Flanagan

Journal Articles

Global Roundtable is a regular series appearing in Tax Notes Federal, Tax Notes State, and Tax Notes International that brings together experts from each discipline to help advance the discussion of tax issues. In this installment, the authors examine the lack of racial diversity in the tax profession and built-in biases in tax policies and suggest ways to remedy the inequities. This article is intended for general information purposes only and does not and is not intended to constitute legal advice. The reader should consult with legal counsel to determine how laws or decisions discussed herein apply to the reader’s …

Judicial Application Of Strict Liability Local Ordinances, Guyora Binder, Brenner Fissell

Journal Articles

No abstract provided.

The Refugees We Are: Solidarity, Asylum, And Critique In The European Constitutional Imagination, Paul Linden-Retek

Journal Articles

This Article aims to reimagine post-national legal solidarity. It does so by bringing debates over Habermasian constitutional theory to bear on the evolving use of mutual recognition and mutual trust in the EU’s Area of Freedom, Security, and Justice (AFSJ), particularly in the context of European asylum law and reforms to the Dublin Regulation. Insofar as critiques of Habermasian “constitutional patriotism” apply to the principle of mutual trust, the Article suggests why post-national solidarity requires fallibilism and dynamic responsiveness that exceed formalized rules of forbearance and respect.

On this revised view, legal solidarity guarantees a particular form of adjudication through …

Our Imperial Federal Courts, Matthew J. Steilen

Journal Articles

This essay is a response to Christian R. Burset, Advisory Opinions and the Problem of Legal Authority, 74VAND.L.REV.621(2021).

“The article is significant for the archival work alone. It is useful, as well, for the impressive synthesis of the existing secondary literature, collected in the footnotes, which makes a convenient reading list for us mere mortals. The argument of the article is ambitious. As the Table of Contents suggests, its structure is complex: the author asks us to visit three different jurisdictions (two British and one American, each thousands of miles apart), in three different decades, in three different political and …