Law Commons^™

Collateral Consequences And The Preventive State, Sandra G. Mayson

Notre Dame Law Review

Approximately eight percent of adults in the United States have a felony conviction. The “collateral consequences” of criminal conviction (CCs)—legal disabilities imposed by legislatures on the basis of conviction, but not as part of the sentence—have relegated that group to permanent second-class legal status. Despite the breadth and significance of this demotion, the Constitution has provided no check; courts have almost uniformly rejected constitutional challenges to CCs. Among scholars, practitioners and mainstream media, a consensus has emerged that the courts have erred by failing to recognize CCs as a form of additional punishment. Courts should correct course by classifying CCs …

December 1, 2015: What Really Fuels Isis?, Bruce Ledewitz

Hallowed Secularism

Blog post, “What Really Fuels ISIS?“ discusses politics, theology and the law in relation to religion and public life in the democratic United States of America.

Nsfw: An Empirical Study Of Scandalous Trademarks, Megan Carpenter, Mary Garner

Student Scholarship

This project is an empirical analysis of trademarks that have received rejections based on their “scandalous” nature. It is the first of its kind.

The Lanham Act bars registration for trademarks that are “scandalous” and “immoral.” While much has been written on the morality provisions in the Lanham Act, this piece is the first scholarly project that engages an empirical analysis of the Section 2(a) rejections based on scandalousness; it contains a look behind the scenes at how the morality provisions are applied throughout the trademark registration process. This study analyzes which marks are being rejected, what evidence is being …

A Critique Of Hobby Lobby And The Supreme Court's Hands-Off Approach To Religion, Samuel J. Levine

Notre Dame Law Review Reflection

Part I of this Essay provides a brief overview for analyzing the Supreme Court’s hands-off approach to religious doctrine. Specifically, this Part presents a summary of problems posed by the hands-off approach, followed by a brief taxonomy of different forms of judicial inquiry into religion. This Part aims to clarify which forms of inquiry are permissible—and typically necessary—for adjudication of a case involving a religious claim, and which forms of inquiry are precluded under the hands-off doctrine. Part II of this Essay applies the hands-off framework to the Hobby Lobby decision, considering the taxonomy of forms of judicial inquiry into …

Giving The Federal Circuit A Run For Its Money: Challenging Patents In The Ptab, Rochelle Cooper Dreyfuss

Notre Dame Law Review

My main objective is directed at institutional questions, to help the PTO and Congress as each considers changes to the system and to gauge how well the PTAB could function to ameliorate the effect of Federal Circuit isolation and provide a basis for the court to consider new perspectives, write more persuasively, and provide better guidance. A second goal is to draw greater academic attention to the potential these procedures have for changing the patent system and to provoke discussion—outside the emerging PTAB bar—on how they ought to operate. In particular, the statute layers inter partes review in a specialized …

From Accession To Exemption: A Brief History Of The Development Of Alaska Property Exemption Laws, Eric H. Miller

Alaska Law Review

This Article examines the historical development of Alaska's debtor protections from their beginnings in the period of initial federal administration to the present. The current Alaska statutes protecting certain property of debtors from their creditors descended from policies first enacted by Congress. Although federal authority began in 1867 with the area's acquisition from Russia, Congress did not provide for governmental administration in Alaska until 1884, which act also provided Alaska its first debtor protection statutes. Extension of the federal Homestead Act to Alaska in 1898 brought the first protections for settlers' homesteads from their creditors. By 1912 and the creation …

Can Films Speak The Truth? Mathieu Kassovitz’S La Haine (1995) And Philippe Faucon’S La Désintégration (2011), Annie Jouan-Westlund Ph.D.

Cultural Encounters, Conflicts, and Resolutions

La Haine, (Dir. Mathieu Kassovitz, 1995) and La Désintégration (Dir. Philippe Faucon, 2011), set in France’s urban periphery, depict the struggle of second and third-generation immigrants growing up in the housing projects and their desire to live like ‘other’ French young people. The analysis offers a comparative study of the films’ reception with a community of viewers made of American students in a Contemporary French Culture course. Following the three paradigms of exclusion (social, racial, and cultural); gender representation; and aestheticism and realism, this study demonstrates that, within certain limits, these cinematic propositions, of similar prophetic nature but different …

Brief For New Mexico Trial Lawyers Association, Montaño V. Frezza As Amicus Curiae, George Bach

Faculty Scholarship

This brief is on whether to extend sovereign immunity to out-of-state doctor in medical malpractice action.

Hunting And The Second Amendment, Joseph Blocher

Notre Dame Law Review

Debates about the meaning and scope of the Second Amendment have traditionally focused on whether it protects the keeping and bearing of arms for self-defense, prevention of tyranny, maintenance of the militia, or some combination of those three things. But roughly half of American gun-owners identify hunting or sport shooting as their primary reason for owning a gun. And while much public rhetoric suggests that these activities fall within the scope of the Second Amendment, some of the most committed gun-rights advocates insist that the Amendment “ain’t about hunting” and that, no matter their heritage and value, such activities are …

Wind Power Growing Pains, K.K. Duvivier

Sturm College of Law: Faculty Scholarship

The United States loves wind power. Since 2004 alone, U.S. wind capacity has multiplied almost ten times — from about 6.7 gigawatts in 2004 to over 65.9 gigawatts by 2014. This growth in generation potential has been accompanied by a growth in the size of the turbines that deliver that power — from approximately 56 feet in the 1980s to over 300 feet in 2015. As the turbines and meterological or met towers push up into non-surface atmospheric weather layers and navigable airspace over 200 feet, new wake efficiency and competing legal concerns arise.

Global Value Chains And Resource Corridors: The Nexus Is Regional Integration, Perrine Toledano

Columbia Center on Sustainable Investment Staff Publications

To be more involved in the global value chains, sub-Saharan African countries should intensify their regional integration efforts. A first step in this direction can be implementing cross-border resource-based development corridors.

Confusing Clarity: The Pregnancy Discrimination Act After Young V. Ups, Inc., Jessica M. Bretl

Notre Dame Law Review Reflection

On March 25, 2015, the Supreme Court issued an opinion in Young v. UPS, Inc.—the most recent case in the Court’s pregnancy discrimination jurisprudence. Young focused on an interpretation of one clause of the Pregnancy Discrimination Act (PDA) and how that interpretation would shape claims of employment discrimination by pregnant employees seeking work accommodations. This Comment argues that the majority opinion in Young did not clarify, but only muddied the waters: the Young framework presents challenges for the lower courts tasked with applying the framework and creates uncertainty for future pregnancy discrimination litigation.

Part I of this Comment provides …

A Matter Of Trial And Error, Or Betting On Appeals, Radek Goral

Notre Dame Law Review Reflection

Sampling from the actual portfolio of a leading third-party litigation financier, this Essay demonstrates that making systematic bets on pending appeals is a viable business model applicable to a wide range of cases. “Appellate investments” may include both consumer and commercial cases, including also public-interest actions where prevailing plaintiffs are permitted attorney’s fees—even if they themselves do not seek monetary relief. Additionally, the analyzed sample indicates that appellate funders buy both from plaintiffs and plaintiffs’ attorneys, often in the same case.

The overview of the business strategy of appellate financing contributes to a larger theme: the role and impact of …

The Failure Of Anti-Money Laundering Regulation: Where Is The Cost-Benefit Analysis?, Lanier Saperstein, Geoffrey Sant, Michelle Ng

Notre Dame Law Review Reflection

Regulators have been punishing the banks not because of any actual money laundering, but rather because the banks did not meet the regulators’ own subjective vision of the ideal anti–money laundering or counter–terrorist financing program. However, no one has attempted to show that the supposedly ideal vision of an anti–money laundering or counter–terrorist financing program would actually be more effective than the programs the banks have in place.

Even if the regulators’ ideal vision of an anti–money laundering and counter–terrorist financing program would in fact be more effective than what exists now, it is unclear if the benefits of such …

Communicating With The Impatient, Skeptical Legal Reader: The Thesis Sentence, Michael J. Higdon

Scholarly Works

No abstract provided.

Intercultural Communicative Competence: Literature Review, Lee F. Wilberschied Ph.D.

Cultural Encounters, Conflicts, and Resolutions

Intercultural Communicative Competence (ICC) is a cluster of capabilities that will become even more essential, not only to negotiate borders of many dimensions as globalization proceeds, but also to enhance the ability to maneuver one’s way in a world that changes by the minute. The process of developing ICC prepares the learner to manage and appreciate border crossings on many levels. This brief review of the literature offers a summary of the components of ICC, how it is similar to and different from other competences, and recommendations on how to assess it. This overview may be helpful when considering the …

Copyright In Photographs In Canada Since 2012, Margaret Ann Wilkinson, Carolyn Soltau, Tierney Gb Deluzio

Law Publications

Photographs perform a unique function because they capture moments in time and that capture is contemporaneous with the subject of the photo: “[a] writer doesn’t necessarily have to be there to produce a story. A photographer, on the other hand, must be at the event when the event happens.”

In 2012, the Copyright Modernization Act changed the Copyright Act in terms of application to photographs. This column will first discuss how copyright now applies to photographs in Canada (who owns copyright and how long it lasts) and then describe the new users’ right now available in respect of commissioned photographs.

On Hearsay, Richard A. Posner

Articles

No abstract provided.

The Origins Of Legislation, Ganesh Sitaraman

Notre Dame Law Review

Although legislation is at the center of legal debates on statutory interpretation, administrative law, and delegation, little is known about how legislation is actually drafted. If scholars pay any attention to Congress at all, they tend to focus on what happens after legislation is introduced, ignoring how the draft came to exist in the first place. In other words, they focus on the legislative process, not the drafting process. The result is that our account of Congress, the legislative process, and the administrative state is impoverished, and debates in statutory interpretation and administrative law are incomplete. This Article seeks to …

Applying Citizens United To Ordinary Corruption: With A Note On Blagojevich, Mcdonnell, And The Criminalization Of Politics, George D. Brown

Notre Dame Law Review

Federal criminal law frequently deals with the problem of corruption in the form of purchased political influence. There appear to be two distinct bodies of federal anticorruption law: one concerning constitutional issues in the prevention of corruption through campaign finance regulation, and one addressing corruption in the form of such crimes as bribery, extortion by public officials, and gratuities to them. The latter body of law primarily presents issues of statutory construction, but it may be desirable for courts approaching these issues to have an animating theory of what corruption is and how to deal with it. At the moment, …

The Illusive "Reasonable Person": Can Neuroscience Help The Mentally Disabled?, Ian J. Cosgrove

Notre Dame Law Review

This Note argues that the distinction between what constitutes a physical versus a mental disability can no longer rationally be sustained. Specifically, its purpose is to show that providing an exception to the “reasonable person” standard in negligence actions for the physically disabled while withholding it for those with mental infirmities is increasingly indefensible. Part I briefly tracks the origins of the current rule in tort law that holds the mentally and physically disabled to separate standards. This discussion is purposely left short because of the breadth of scholarship tracing the standard. Part II seeks to justify, through neuroscientific brain …

Equal Access In Cyberspace: On Bridging The Digital Divide In Public Accommodations Coverage Through Amendment To The Americans With Disabilities Act, Laura Wolk

Notre Dame Law Review

This Note will proceed in three Parts. Part I will trace the development of the case law on this issue, which has culminated in a circuit split. It will also discuss the influence of the Department of Justice (DOJ), which has not exercised its regulatory authority on the subject but which has initiated enforcement actions consistent with an interpretation that includes freestanding websites. Part II will argue, based on the text, congressional silence, and the statute’s dual principal purposes, that private commercial websites do not fall within the purview of Title III. Part III will propose that disability rights advocates …

Frontmatter

Brigham Young University Journal of Public Law

No abstract provided.

Legal Storytelling: The Murder Of Voter Id, Tracy Mccants Lewis

Brigham Young University Journal of Public Law

No abstract provided.

The Protection Of Water Resources As A Justification For Self-Defense In International Humanitarian Law, Mark Tyler

Brigham Young University Journal of Public Law

No abstract provided.

Twenty-Week Abortion Bans: Ineffective, Unconstitutional And Unwise, Paul Benjamin Linton

Brigham Young University Journal of Public Law

No abstract provided.

Use Of Preponderance Of Evidence In Campus Adjudication Of Sexual Misconduct, Elizabeth Sommer

All NMU Master's Theses

How higher education institutions (HEI) handled sexual misconduct cases matters. It matters for survivors, accused, administrators, parents, HEI leaders, regulatory bodies (such as the Office for Civil Rights), and the general public. The 2011 Dear Colleague Letter published by the Department of Education’s Office for Civil Rights mandated the use of preponderance of evidence in all sexual misconduct cases (Ali, 2011). The change to utilize a low burden of proof, preponderance of evidence, was and is controversial. Despite a large literature base of legal opinions on the use of preponderance of evidence in the campus adjudication process, there are few …

Changing Course: Revisiting Instream Flow Rulemaking In Washington State Following Swinomish V. Ecology, Haylee J. Hurst

Washington Law Review

Since the adoption of Washington’s Water Resources Act in 1971, legal recognition of instream water uses to preserve fish, wildlife, and other environmental values have become firmly entrenched in Washington water law. By establishing “instream flow rules,” rules that require a certain amount of water to be left in streams before water may be withdrawn for any new uses, the Washington State Department of Ecology (Ecology) must protect the environment while also managing water to achieve “maximum net benefits” for the people of Washington State. Ecology may only allow new withdrawals of water that will impair established instream flows if …

Digital Border Searches After Riley V. California, Thomas Mann Miller

Washington Law Review

The federal government claims that the Fourth Amendment permits it to search digital information on cell phones, laptops, and other electronic devices at the international border without suspicion of criminal activity, much less a warrant. Until recently, federal courts have generally permitted these digital border searches, treating them no differently from searches of luggage. Courts that have limited digital border searches have required only that the government establish reasonable suspicion for the most exhaustive kind of digital search. The Supreme Court has not yet weighed in, but last year it held in Riley v. California that the search incident to …

Product Liability, Franklin P. Brannan Jr., P. Michael Freed, Jake C. Evans

Mercer Law Review

This Article surveys developments in Georgia product liability law between June 1, 2013 and May 31, 2015. It covers noteworthy cases decided during this period by the Georgia Court of Appeals, the United States Court of Appeals for the Eleventh Circuit, and the United States district courts located in Georgia.