Law Commons^™

The Conservative-Libertarian Turn In First Amendment Jurisprudence, Steven J. Heyman

All Faculty Scholarship

Conservative constitutional jurisprudence in the United States has an important libertarian dimension. In recent years, a conservative majority of the Supreme Court has strengthened the constitutional protections for property rights, recognized an individual right to own firearms, imposed limits on the welfare state and the powers of the federal government, cut back on affirmative action, and held that closely held corporations have a right to religious liberty that permits them to deny contraceptive coverage to their female employees. This libertarian streak also can be seen in decisions on freedom of speech and association. In several leading cases, conservative judges have …

Stein Center News - December 2014, Stein Center For Law And Ethics

Stein Center News

No abstract provided.

The First Amendment And Mass Communication, Marvin Ammori

First Amendment Law Review

No abstract provided.

First Amendment Values For The Internet, Dawn C. Nunziato

First Amendment Law Review

No abstract provided.

A Conflict Of Visions: How The 21st Century First Amendment Violates The Constitution's First Amendment, Geoffrey A. Manne, R. Ben. Sperry, Tom Struble, Berin Szoka

First Amendment Law Review

No abstract provided.

Foreign Investments And The Market For Law, Erin O'Hara O'Connor, Susan D. Franck

Scholarly Articles

In this Article, Professors O’Hara O’Connor and Franck adapt and extend Larry Ribstein’s positive framework for analyzing the role of jurisdictional competition in the law market. Specifically, the authors provide an institutional framework focused on interest group representation that can be used to balance the tensions underlying foreign investment law, including the desire to compete to attract investments and countervailing preferences to retain domestic policymaking discretion. The framework has implications for the respective roles of BITs and investment contracts as well as the inclusion and interpretation of various foreign investment provisions.

Vol. 6 No. 1, Fall 2014; Protecting The Sanctity Of Family: An Argument For The Equitable Parent Doctrine, Kelli Schmidt

Northern Illinois Law Review Supplement

This Comment examines the rights of men who held themselves out as a child's father or who did not know they were the biological father with a focus on the equitable parent doctrine. Because the equitable parent doctrine has not been adopted in Illinois, the author proposes new legislation. The proposed legislation establishes factors to assist a court in determining when a man should be granted rights to a child with respect to two different scenarios: first, if he held himself out as the child's father, but ultimately found out he was not the biological father, or second, if the …

The Curious Incident Of The Supreme Court In Myriad Genetics, Dan L. Burk

Notre Dame Law Review

Often what is not said is as significant as what is said. In its recent Myriad Genetics decision, the United States Supreme Court is curiously silent about the relationship between its holding in that case and the holding in its immediately previous patent subject matter case, Mayo v. Prometheus. This reticence is all the more puzzling given that the Court initially remanded Myriad to the lower courts for reconsideration in light of the Mayo holding. The Court’s silence regarding Mayo leaves uncertain the relationship between the “products of nature” doctrine that serves as the basis for the Myriad decision, and …

Respecting Legislators And Rejecting Baselines: Rebalancing Casey, Paul C. Quast

Notre Dame Law Review

Part I of this Note describes the background cases leading to the Supreme Court’s decision in Casey and the resulting undue burden standard. This Part also explains the limited circumstances in which the undue burden standard gives more definitive guidelines for judicial decisionmaking. Part II works through several federal district and appellate court cases to identify some of the underlying baseline presumptions and normative value judgments influencing judicial decisions in this area of the law. These baselines are often dispositive in determining whether a restriction on abortion is due or undue, cutting against the goodwill attempts by legislatures to make …

The Santissima Trinidad: The Role Of Baltimore's Privateers With The Independence Of The United Provinces, Shannon Price

Legal History Publications

After the War of 1812, the maritime industry began to decline and merchants and mariners began serving as privateers for Latin American colonies ceding from Spain. This paper examines the Supreme Court decision in an action filed on behalf of the Spanish government seeking restitution for cargo seized from a Spanish vessel, the Santissima Trinidad, on the high seas by the Independencia Del Sud, a public vessel of Buenos Ayres. The Court holds that jurisdiction exists for neutrality violations as the goods were landed at Norfolk, Virginia and the public vessel had an illegal augmentation of force in a U.S. …

Livingston & Gilchrist V. The Maryland Insurance Co. (1813): A Testament To Judicial Flexibility, Kathleen Lord Fallon

Legal History Publications

Barely a month before Justice Brockholst Livingston joined the Supreme Court of the United States, a ship he commissioned with a cargo of $50,000, was captured by the British and condemned. The circumstances of the vessel’s voyage led to its capture; she sailed as an American merchant ship under a Spanish license with an American crew. When seized as a prize, the British found papers showing conflicting information concealed amongst the crew belongings. Justice Livingston tried to recoup his losses through an insurance policy with the Maryland Insurance Company, but was denied on the grounds that the voyage had been …

Human Capital Effects Of Anti-Poverty Programs: Evidence From A Randomized Housing Voucher Lottery, Brian A. Jacob, Max Kapustin, Jens Ludwig

Kreisman Working Paper Series in Housing Law and Policy

Whether government transfer programs increase the human capital of low-income children is a question of first-order policy importance. Such policies might help poor children if their parents are credit constrained, and so under-invest in their human capit

Expertise Value Added In The Real Estate Market, Sebastien Gay, Allen T. Zhang

Kreisman Working Paper Series in Housing Law and Policy

No abstract provided.

Constitutional Limits On Surveillance: Associational Freedom In The Age Of Data Hoarding, Deven R. Desai

Notre Dame Law Review

Protecting associational freedom is a core, independent yet unappreciated part of the Fourth Amendment. New surveillance techniques threaten that freedom. Surveillance is no longer primarily forward looking. Today, changing technology allows law enforcement and intelligence services to obtain the same, if not more, information about all of us by looking backward. This shift massively expands the government’s ability to examine, investigate, and deter exercise of the freedom of association.

Forward-looking surveillance has limits that don’t apply to backward-looking surveillance. Some limits are practical such as the cost to place a person in a car to follow a suspect. Some are …

Business Torts And Unfair Competition Handbook, 3rd Edn, Maurice Stucke

Scholarly Works

No abstract provided.

Vol. 6 No. 1, Fall 2014; Table Of Contents & Masthead, Northern Illinois University Law Review Online Supplement, Northern Illinois University Law Review Online Supplement

Northern Illinois Law Review Supplement

No abstract provided.

The Rule Of Law As A Law Of Law, Steven G. Calabresi, Gary Lawson

Notre Dame Law Review

Justice Scalia is famous for his strong rule orientation, best articulated in his 1989 article, The Rule of Law as a Law of Rules. In this Article, we explore the extent to which that rule orientation in the context of constitutional interpretation is consistent with the Constitution’s original meaning. We conclude that it is far less consistent with the Constitution than is generally recognized. The use of standards rather than rules is prescribed not only by a few provisions in the Bill of Rights and the Fourteenth Amendment but also by key aspects of the 1788 constitutional text. The executive …

The Vonage Trilogy: A Case Study In "Patent Bullying", Ted Sichelman

Notre Dame Law Review

This Article presents an in-depth case study of a series of infringement suits filed by “patent bullies.” Unlike the oft-discussed “patent trolls”—which typically sell no products or services and perform no R&D—patent bullies are large, established operating companies that threaten or institute costly patent infringement actions of dubious merit against smaller companies, usually in order to suppress competition or garner licensing fees. In an ideal world of high-quality patents and optimal patent licensing and litigation, infringement suits by aggressive incumbents would have a cleansing, almost Darwinian effect. Yet, defects and distortions in patent examination, licensing, and litigation—the very problems that …

Getting To Know Fred, Dr. Emily Sanchez Salcedo

Center for Business Research and Development

Family responsibilities discrimination (FReD) is a novel concept in the Philippine workplace. It is novel not because it is a new occurrence but because societal awareness is a fairly recent phenomenon following its unprecedented surge in popularity in the United States that began with the publication of the book, “Unbending Gender: Why Family and Work Conflict and What to Do About It” in 2000 by Professor Joan C. Williams.

Fate Control And Human Rights: The Policies And Practices Of Local Governance In America’S Arctic, Mara Kimmel

Alaska Law Review

The loss of territoriality over lands conveyed under the Alaska Native Claims Settlement Act had adverse impacts for Alaskan tribal governance. Despite policy frameworks that emphasize the value of local governance at an international, regional, and statewide level, Alaskan tribes face unique obstacles to exercising their authority, with consequences for both human development and human rights. This Article examines how territoriality was lost and analyzes the four major effects of this loss on tribal governance. It then describes two distinct but complimentary strategies to rebuilding tribal governance authority that rely on both territorial and non-territorial authority.

Lane V. Franks, Katie Jo Baumgardner

Notre Dame Law Review Reflection

On June 19, 2014, the U.S. Supreme Court expanded the scope of public employee free speech with its decision in Lane v. Franks. The Court granted certiorari in order “to resolve discord among the Courts of Appeals as to whether public employees may be fired—or suffer other adverse employment consequences—for providing truthful subpoenaed testimony outside the course of their ordinary job responsibilities.” The unanimous Lane decision, which affirmed in part and reversed in part an opinion by the Eleventh Circuit, held that the First Amendment protects a public employee from retaliatory employer discipline where the employee testifies at trial, pursuant …

What About Boem? The Need To Reform The Regulations Governing Offshore Oil And Gas Planning And Leasing, Michael Levine, Andrew Hartsig, Maggie Clements

Alaska Law Review

The nature of offshore oil and gas activities is changing as companies are forced into difficult and remote areas, including the U.S. Arctic Ocean. As evidenced by the 2010 Deepwater Horizon tragedy and Shell's error-plagued efforts to drill exploration wells in the Chukchi and Beaufort seas in 2012, the rules governing whether and under what conditions to allow offshore drilling in frontier areas have not kept pace with environmental and technical changes. These rules were implemented in 1979 and have remained substantively the same since. Recent changes to at the Department of the Interior to disband the Minerals Management Service, …

Compliance With Most Favored Customer Clauses: Giving Meaning To Ambiguous Terms While Avoiding False Claims Act Allegations, Mitchell S. Ettinger, James C. Altman

Notre Dame Law Review Reflection

Federal and state contracting authorities more frequently are including Most Favored Customer (MFC) clauses in contracts for procurement of privately manufactured products. These clauses seek to ensure that the contracting authority (typically a federal or state agency) receives at least as favorable pricing as other customers making similar purchases. For example, the government agency may request that the contractor warrant that the prices it charges under the contract will be as favorable as those offered to other parties purchasing similar products of similar quantity under similar terms and conditions. In theory, the request to be treated equally to others making …

Preventative V. Punitive: How Genetically Modified Rice Litigation Shaped Regulation And Remedy For Genetically Engineered Crops, Allison Waldrip Bragg

Journal of Food Law & Policy

As agricultural technology develops, new issues emerge. While genetically engineered crops can increase yields and productivity, they can also increase new legal concerns that had not previously existed. One such concern is the comingling of non-engineered crops with genetically engineered varieties. The corruption of plants that are not engineered is a problem not only because of the loss of that original plant itself if the entire plant population were to become comingled, but also because of the inability to sell a crop that has been intended as a non-engineered crop when it is infiltrated by genetically engineered material.

Paradise Found? Food Transportation Regulation: A Detour Through Regulatory Purgatory, William Nash

Journal of Food Law & Policy

On January 31, 2014, the Food and Drug Administration ("FDA") issued a Notice of Proposed Rulemaking ("NPRM") that would set requirements for shippers, carriers and receivers of food transported in intrastate and interstate commerce. The NPRM marks a potentially important step in a long history of the (non-)regulation of food transportation. In Parts I and II, this paper will provide some context of the history of food transportation, as well as the major incidents that placed the food transportation industry on the regulatory map. In Parts III and IV, the paper will consider the history of food transportation regulation from …

Let's Stop Worrying And Learn To Love Transparency: Food And Technology In The Information Age, Scarlettah Schaefer

Journal of Food Law & Policy

Food and technology have had a long and tempestuous relationship. Current methods of food production and processing in the industrialized world depend heavily on technological developments. However, all technologies are not created equal. Some can produce food that is safer, more sustainable, more nutritious, or longer lasting. Some can have the opposite effect: increasing opportunities for adulteration, increasing the difficulty in detecting food fraud, and contributing to both foreseeable and unforeseeable health or ecological costs. Increasingly sophisticated technologies often become less apparent to the average consumer. For example, consider irradiated meat or genetically modified foods as opposed to freezer storage …

The Hamburglar, Friend Or Foe: What Is The Best Solution For Lawsuits Alleging Obesity Caused By Fast Food Outlets When No Causal Link Between Consumption And Obesity Can Be Found?, Mary Hoshall Hodges

Journal of Food Law & Policy

When is the last time you ventured through the drive-thru of a fast food establishment? Maybe last night when it was just easier than taking the time to cook dinner, or maybe last weekend on your way home from vacation, or maybe when you were running low on funds and needed a cheap meal? Given the busy, fast-paced lives Americans lead, it is no wonder that many rely on the fast food industry, even though most would not care to admit it.

Toward A Just Food Regime: Consumption, Ideology, And Democratic Strategy, Adam B. Lichtenberger

Journal of Food Law & Policy

United States agricultural policies incentivize the growth and consumption of industrial foods. Industrial foods are linked to a host of social and ecological ills. However, agricultural policies are insulated from political criticism, in part, by the myth that consumers freely and rationally choose industrial foods. This neoliberal myth is congruous with the American preferences for "stealth democracy." That is, the neoliberal myth is an elegant, but ultimately erroneous, reconciliation of conflicting political preferences: Americans do not want to be involved in politics, but they also do not want the political process to be used by special interests or politicians to …

Straddling The Columbia: A Constitutional Law Professor's Musings On Circumventing Washington State's Criminal Prohibition On Compensated Surrogacy, Peter Nicolas

Washington Law Review

In this Article, I recount—through both the prisms of an intended parent and a constitutional law scholar—my successful efforts to become a parent via compensated surrogacy and egg donation. Part I of this Article provides a narrative of my experience in becoming a parent via compensated surrogacy, and the various state and federal legal roadblocks and deterrents that I encountered along the way, including Washington State’s criminal prohibition on compensated surrogacy as well as federal guidelines issued by the U.S. Food and Drug Administration regarding the use of sperm by gay donors in the process of in vitro fertilization. Part …

Agglomerama, Lee Anne Fennell

Kreisman Working Paper Series in Housing Law and Policy

Urbanization presents students of commons dilemmas with a pressing challenge: how to achieve the benefits of proximity among people and land uses while curbing the negative effects of that same proximity. This piece, written for the 2014 BYU Law Review Sy