Law Commons^™

Using Global Law To Teach Domestic Advocacy, John B. Mitchell

Faculty Articles

There is currently a movement to integrate so-called global law into the law school curriculum. This essay, Using Global Law to Teach Domestic Advocacy, briefly explores this movement and its underlying rationales, and then focuses on using foreign procedural law in a traditional American trial advocacy course, principally to improve the students' domestic advocacy skills. Believing that such concepts are best understood in the concrete, Professor MitchellI has created a set of imaginary exercises to a trial advocacy class in which the instructor swaps various features of the Scotch Criminal Justice system (no opening statement, nor voir dire, three verdicts) …

Old Hate In New Bottles: Privatizing, Localizing, And Bundling Anti-Spanish And Anti-Immigrant Sentiment In The 21st Century, Steven W. Bender

Faculty Articles

Professor Bender’s introduction focuses on two trends that emerged or accelerated in the past few years - (1) the localization of anti-Spanish and anti-immigrant sentiment and (2) the bundling of anti-Spanish regulation with other anti-immigrant regulation. Although both of these practices have roots in the last century," no doubt of late they have become more widespread and pronounced.

Tax And Economic Policy Responses To The Medicaid Long-Term Care Financing Crisis: A Behavioral Economics Approach, Diane Lourdes Dick

Faculty Articles

This article contributes to the prominent dialogue surrounding the healthcare financing crisis. It does so by analyzing policy solutions using consumer choice theory.

Pilgrim To Nowhere - The Mysterious Journey Of Robert Rodes, Emily A. Hartigan

Faculty Articles

Notre Dame Law Professor Robert Rodes advocates for Pilgrim Law, which is based on the preferential option for the poor. Pilgrim Law is the jurisprudential manifestation of liberation theology. Rodes used Milovan Djilas, author of anti-socialist works such as Conversations with Stalin and The New Class, for insight. Drawing from Djilas, Rodes concludes that class will always count, but count in a nuanced way. This revelation was discovered within Djilas’ self-aware and trenchant analysis amid the reality of the theoretically “classless” societies of Soviet (and Yugoslav) socialism. This empirical insight is what Rodes finds crucial to his Pilgrim Law advocacy. …

Unlaw, Emily A. Hartigan

Faculty Articles

The United States is in a time of “unlaw” that is both a point in circular time, the time of eternal return, and a point never before reached. This “unlaw” infuses both the practical, applied, and experiential world of politics. Additionally, this era of “unlaw” also incorporates the intellectual world of philosophy and theology as well as political theory.

In this state of non-law, the United States incarcerates a higher percentage of people than any other developed nation. The United States claims to value money so much that it is speech, and thus free under the First Amendment. This results …

The Court Of Appeals For The Fifth Circuit: A Legal Analysis And Statistical Review Of 2005-2006 Insurance Decisions, Willy E. Rice

Faculty Articles

he Fifth Circuit Court of Appeals decided and published twenty-four insurance-related appeals between June 2005 and May 2006 from cases originating in seven federal district courts. Like petitioners in prior years, the overwhelming majority of the 2005-2006 appellants petitioned the court of appeals to reverse or vacate district courts' adverse summary judgments as well as the lower courts' allegedly questionable interpretations of various insurance contracts. Most of the controversies involved familiar procedural and substantive questions of law, but the Fifth Circuit also decided many questions of fact. Furthermore, several preemption questions and disputes over subject matter jurisdiction appeared among the …

Electronic Surveillance Of Terrorism: The Intelligence/Law Enforcement Dilemma - A History, William Funk

Faculty Articles

The Foreign Intelligence Surveillance Act (FISA) has been much in the news. Because the requirements for a judicial warrant under FISA do not require the traditional showings for electronic surveillance for law enforcement purposes, one of the issues relating to EISA is the extent to which surveillance under that Act may be undertaken for the purposes of criminal law enforcement, rather than for obtaining foreign counterintelligence or counterterrorism information. This issue became particularly salient after 9/11 when at the administration's urging Congress passed an amendment to KISA in the USA PATRIOT Act that eliminated the previous requirement that "the purpose" …

Majority Politics And Race Based Remedies, Darren L. Hutchinson

Faculty Articles

This Essay applies the principles of social movement theory and analyzes the legal status of race-based remedies. Many scholars have debated the constitutionality and efficacy of affirmative action, the appropriateness of race-consciousness (from legal and social perspectives) and the legitimacy of structural judicial remedies for various types of discrimination. This paper will add to this literature by demonstrating the influence of conservative race politics and ideology on Court doctrine concerning affirmative action and other race-based remedies. In particular, this Essay will demonstrate that, consistent with broader political trends, the Court disfavors governmental usage of race as a remedy for discrimination …

State Practice In The Management And Allocation Of Transboundary Groundwater Resources In North America, Gabriel Eckstein, Amy Hardberger

Faculty Articles

Throughout the world, international and state political boundaries divide groundwater resources into politically convenient jurisdictions. Subsurface water, however, does not recognize such borders and flows freely without regard to overlying politics. This disregard for the political dimension, coupled with the growing global importance of fresh water, has the potential for aggravating disputes and conflicts over the use, allocation, and preservation of such resources. To date, widely accepted norms of international law applicable to transboundary aquifers have yet to emerge. However, local and regional agreements, including both formal and unofficial arrangements, suggest the emergence of state practice that should be considered …

Thompson/Mcnulty Memo Internal Investigations: Ethical Concerns Of The Deputized Counsel, Colin P. Marks

Faculty Articles

Outside counsel who conduct internal investigations for corporate clients have always faced ethical concerns, especially when interviewing employees. Generally, a carefully crafted blanket statement at the beginning of the interview explaining outside counsel's role was sufficient to address these concerns. However, recent charging policies adopted by the Department of Justice ("DOJ") have drastically changed the rules. These policies, articulated in what is now commonly referred to as the "Thompson Memo," after the author and then Deputy General Larry Thompson, allowed prosecutors to consider factors such as waivers of the attorney-client privilege and work-product protections and whether the company provides legal …

Categorical Exclusions From Capital Punishment: How Many Wrongs Make A Right?, Dora W. Klein

Faculty Articles

The two categorical exclusions of age and mental capacity will impact not only those offenders who are excluded from the death penalty, but also those offenders who remain subject to this punishment. The Supreme Court’s decisions in Roper v. Simmons and Atkins v. Virginia raise the issue that a capital-punishment-limiting decision possesses wrongs of its own. Both decisions limit the death penalty—Roper excludes from this punishment offenders who committed their crimes before they were eighteen years old and Atkins excludes offenders who are mentally retarded. But in both cases, the Supreme Court overstated the uniformity and universality of traits associated …

The Evolving Standard For The Granting Of Mandamus Relief In The Texas Supreme Court: One More Mile Marker Down The Road Of No Return, Richard E. Flint

Faculty Articles

The Prudential balancing test should be of concern for anyone interested in the rule of law. This test is the current binding precedent for determining when an appellate court should exercise its mandamus authority upon a finding of a clear abuse of discretion. This test has substantially altered one of the most time honored principles of mandamus jurisprudence, and replaced it with a newly articulated standard that leads to nothing short of ad hoc decision making.

In the area of mandamus jurisprudence, the Texas Supreme Court has, from time to time, developed different ways to circumvent the common law history …

Threading The Eye Of The Erisa Needle: Erisa Preemption And Alternative Legal Schemes To Fill The Regulatory Vacuum,, Bernard D. Reams Jr., Michael P. Forrest

Faculty Articles

Popular consensus suggests that the Employee Retirement Income Security Act (“ERISA”) is a mess, and one of historic proportions. ERISA’s comprehensive reach to protect employer-provided benefits has in practice produced unintended, if not contradictory, results.

Congress passed ERISA over thirty years ago to protect the rights of employees who benefit from employer pension and welfare benefit plans. It did so with a series of regulations that promote uniformity in litigation across the various states through “strong preemption language.” The goal of uniformity arguably benefits workers by imposing regular standards of conduct which lend predictability to the scope of litigation, or …

The Storm Between The Quiet: Tumult In The Texas Supreme Court, 1911-21, Michael S. Ariens

Faculty Articles

The Texas Supreme Court from 1911–1921 is best known not for the law it made or the opinions it wrote, but for its failure to decide cases. Although the supreme court’s difficulty in clearing its docket existed before 1911, the number of outstanding cases exploded during the second decade of the twentieth century.

Arguably, the issue of statewide prohibition and the divergent views held on that issue by members of the Texas Supreme Court was the driving force behind the disharmony and dysfunctionality of the court during this decade. Statewide prohibition explains why elections of candidates to the court were …

Federal Rules Update: How Rules Are Made: A Brief Review, David A. Schlueter

Faculty Articles

In June 2007, the Standing Committee on the Federal Rules of Procedure and Evidence authorized publication for comment on a number amendments to the rules of criminal procedure. The amendment to Criminal Rule 7 would delete subdivision (c)(2) because it is covered in Rule 32.2(a). The change to Criminal Rule 32 would provide that the presentence report should state whether the government is seeking forfeiture of property. Amendments to Criminal Rule 32.2. would change a number of procedures related to criminal forfeiture. Criminal Rule 41 would create a two-step process for seizing and reviewing electronic storage media. Amendments to the …

Texas Annual Survey: Securities Regulation, George Lee Flint Jr

Faculty Articles

With respect to easing registration requirements, the State Securities Board (“Board”) had the opportunity to lead both state and federal securities regulatory bodies through rule changes for finders--those who assist issuers in finding purchasers. The Board also issued no-action letters for nonregistration of securities issued in connection with various reorganizations involving a Massachusetts business trust, a demutualization of an insurance company, and an exchange of private shares for public American Depository Receipts.

Other than considering the availability of the in pari delicto defense for litigation-funding agreements, the courts generally avoided the interesting issues. Such issues include whether a seller’s fraud …