Law Commons^™

United We Stand, Divided We Fall? An Inquiry Into The Values And Shortcomings Of Uniform Methodology For Statutory Interpretation, Chelsea A. Bunge-Bollman

Notre Dame Law Review Reflection

How should courts interpret statutes? This question has fueled generations of debate. Some believe generally that legislative intent should be understood based on the greater purpose of the statute; others believe that would be “pure applesauce” and the legislative intent should be understood through the plain meaning of the statute as written. Where one lands on that spectrum dictates the acceptable use of various tools for statutory interpretation, from legislative history to dictionaries. But, this is largely a theoretical exercise because statutory interpretation is messy in practice. The judiciary employs a variety of methodologies across cases, courts, time periods, and …

Why Robert Mueller's Appointment As Special Counsel Was Unlawful, Steven G. Calabresi, Gary Lawson

Notre Dame Law Review

Since 1999, when the independent counsel provisions of the Ethics in Government Act expired, the Department of Justice (DOJ) has had in place regulations providing for the appointment of “special counsels” who possess “the full power and independent authority to exercise all investigative and prosecutorial functions of any United States Attorney.” Appointments under these regulations, such as the May 17, 2017 appointment of Robert S. Mueller to investigate the Trump campaign, are patently unlawful, for three distinct reasons.

First, all federal offices must be “established by Law,” and there is no statute authorizing such an office in the DOJ. We …

Shareholders United?, Andrew K. Jennings

Notre Dame Law Review Reflection

Securities regulation has a way of crossing into other lanes. What public companies do is substantive regulation. How they govern themselves while doing it—or more importantly, how they disclose it—is securities regulation. So it is no surprise that the perennial concern over regulating money in politics should also become a question of federal securities regulation. The Shareholders United Act (the “Act”)—passed by the House of Representatives as part of House Bill 1, an early, major piece of legislation in the 116th Congress—does just that. The Act would require that before engaging in political spending, public companies poll shareholders on how …

Is Congress Holding Itself To Account? Addressing Congress's Sexual Harassment Problem And The Congressional Accountability Act Of 1995 Reform Act, Christina C. Hopke

Notre Dame Law Review

This Note explores how the Congressional Accountability Act of 1995 ("CAA") contributed to the underreporting of the sexual harassment occurring in Congress and evaluates both the original proposals offered by the House and Senate to reform the CAA and the Reform Act in its final form. Part I will offer brief background information on the ‘me too’ Movement and the specific allegations of harassment against individuals in Congress. Part II will explore the issue of underreporting when it comes to instances of sexual harassment, with a particular focus on reporting considerations of professional women such as those employed in the …

A Repeated Call For Omnibus Federal Cybersecurity Law, Carol Li

Notre Dame Law Review

In Part I, this Note discusses the concerning regularity of high-profile data breaches that have occurred within the United States’ weak and patchwork landscape of cybersecurity law. Part II discusses the challenges companies face when attempting to comply with the current cybersecurity law, and why companies who are deemed compliant are still falling victim to hackers and data breaches. Part III makes a call for federal legislation to replace the current, inadequate, fragmented, and uneven landscape of cybersecurity law. Part IV discusses numerous factors and incentives to consider in creating an omnibus federal cybersecurity law. Finally, Part V offers some …

The Need To Codify Roe V. Wade: A Case For National Abortion Legislation, Kathryn N. Peachman

Journal of Legislation

No abstract provided.

The Gendered Burdens Of Conviction And Collateral Consequences On Employment, Joni Hersch, Erin E. Meyers

Journal of Legislation

Ex-offenders are subject to a wide range of employment restrictions that limit the ability of individuals with a criminal background to earn a living. This Article argues that women involved in the criminal justice system likely suffer a greater income-related burden from criminal conviction than do men. This disproportionate burden arises in occupations that women typically pursue, both through formal pathways, such as restrictions on occupational licensing, and through informal pathways, such as employers’ unwillingness to hire those with a criminal record. In addition, women have access to far fewer vocational programs while incarcerated. Further exacerbating this burden is that …

When Soft Law Meets Hard Politics: Taming The Wild West Of Nonprofit Political Involvement, Lloyd Hitoshi Mayer

Journal of Legislation

Beginning in the 1990s and continuing today, many of the legal and psychological barriers to nonprofits becoming involved in electoral politics have fallen. At the same time, political divisions have sharpened, causing candidates, political parties, and their supporters to scramble more aggressively for any possible edge in winner-take-all political contests. In the face of these developments, many nonprofits have violated the remaining legal rules applicable to their political activity with little fear of negative consequences, especially given vague rules and a paucity of enforcement resources. Such violations include under reporting of political activity in government filings, fly-by-night organizations that exist …

The Perils And Promises Of Artificial General Intelligence, Brian S. Haney

Journal of Legislation

No abstract provided.

Restoring Effective Congressional Oversight: Reform Proposals For The Enforcement Of Congressional Subpoenas, Kia Rahnama

Journal of Legislation

This Article proposes possible legislative reforms to Congress’s exercise of its contempt power in combating non-compliance with subpoenas duly issued as part of congressional investigations. With the recent trends in leveraging congressional investigations as an effective tool of separation of powers, this Article seeks to explore the exact bounds of congressional power in responding to executive officers’ noncompliance with congressional subpoenas, and whether or not current practice could be expanded beyond what has historically been tried by the legislative branch. This Article provides a brief summary of the historic practice behind different options for responding to non-compliance with subpoenas (inherent …

Lands Of Opportunity: An Analysis Of The Effectiveness And Impact Of Opportunity Zones In The Tax Cuts And Jobs Act Of 2017, Joseph Bennett

Journal of Legislation

No abstract provided.

Considering The Costs: Adopting A Judicial Test For The Least Restrictive Environment Mandate Of The Individuals With Disabilities Education Act, Edmund J. Rooney

Journal of Legislation

No abstract provided.

Do We Need To Secure A Place At The Table For Women? An Analysis Of The Legality Of California Law Sb-826, Teal N. Trujillo

Journal of Legislation

No abstract provided.

The Marketplace Of Ideas Online, Dawn C. Nunziato

Notre Dame Law Review

This Article surveys the severe problems in today’s online marketplace of ideas and the efforts that regulators—and the online platforms themselves—have recently adopted in an attempt to address such problems. In Part I, this Article examines the historical foundations of the “marketplace of ideas” model, as articulated in Holmes’s early opinions, as well as the Court’s eventual adoption of the marketplace model and, with it, the adoption of counterspeech, instead of censorship, as the default response to harmful speech. Part II then examines the scope and extent of the problems besieging the modern online marketplace of ideas, focusing on problems …

On Public Employees And Judicial Buck-Passing: The Respective Roles Of Statutory And Constitutional Protections For Government Whistleblowers, Heidi Kitrosser

Notre Dame Law Review

In Garcetti v. Ceballos, the Supreme Court held that public employees have no First Amendment protections for speech made “pursuant to their official duties.” Writing for the majority, Justice Kennedy assured readers that the holding did not undermine “the potential societal value of employee speech.” Among other things, Kennedy pointed to a “powerful network of legislative enactments—such as whistle-blower protection laws and labor codes—available to [public employees] who seek to expose wrongdoing.” Yet as Justice Souter pointed out in dissent and as several amici had informed the Court in their briefs, “the combined variants of statutory whistle-blower definitions and …

The Equal Rights Amendment Revisited, Bridget L. Murphy

Notre Dame Law Review

This Note proceeds in three Parts. Part One chronicles the history of the Equal Rights Amendment, from the original attempt at passage through the various reiterations thereafter. Part Two describes the legal background, including constitutional and legislative protection against discrimination on the basis of sex. Part Three of this Note then demonstrates that a faithful understanding of the existing constitutional and legislative protections reveals inherent weaknesses. Specifically, the original understanding of the Fourteenth Amendment did not contemplate protection from sex-based discrimination, and the word “sex” as a prohibited basis for discrimination in Title VII was added as a last-minute attempt …

Americans In Waiting: Finding Solutions For Long Term Residents, Shoba Sivaprasad Wadhia

Journal of Legislation

No abstract provided.

Debts Paid: Ending Criminal Disenfranchisement, Tyler Knutson

Journal of Legislation

No abstract provided.

She Could Steal, But She Could Not Rob: Punishment Inflation In Burglary Statutes Nationwide, Candace Mccoy, Phillip M. Kopp

Journal of Legislation

No abstract provided.

Back To The Farm: A Call To Re-Invigorate New York City's Biosolid Program, Brendan Collins

Journal of Legislation

No abstract provided.

The Indefensible "Gay Panic Defense", Devan N. Patel

Journal of Legislation

No abstract provided.

The Family Office Rule: A Re-Examination, Kevin Asencio

Journal of Legislation

No abstract provided.