Law Commons^™

Setting Our Feet: The Foundations Of Religious And Conscience Protections, Hanna Torline

Notre Dame Law Review

This Note does not attempt to claim that religion and conscience are not moral equivalents, that they are not equally important, or that they do not require equal legal treatment. Nor does it attempt to claim the converse. Simply put, it argues that a consideration of the different foundations underlying conscience protections and religious protections should give pause to anyone arguing that the two are equivalent. This Note concludes that the rationales behind protecting religion and conscience are different enough to merit consideration in the debate. For if religion and conscience are treated as equivalents under the law, they will …

Regulation And The New Politics Of (Energy) Market Entry, David B. Spence

Notre Dame Law Review

This Article examines the dynamics of nongovernmental organization (NGO) opposition to proposed energy infrastructure in the twenty-first century, specifically the tactics and issue arguments used by NGOs to oppose new energy infrastructure. The analysis is built around a data set comprising information more than four hundred NGOs whose missions include active opposition to one or more of nine different types of energy projects, including various types of fossil fuel infrastructure, renewable energy facilities, and smart grid technology.

Part I of this Article explains the legal context in which NGOs may challenge the approval of new energy projects. Siting regulation typically …

The Privileges Or Immunities Clause, Abridged: A Critique Of Kurt Lash On The Fourteenth Amendment, Randy E. Barnett, Evan D. Bernick

Notre Dame Law Review

In earlier writings, both of us have expressed sympathy for the view that the Privileges or Immunities Clause affords absolute protection to unenumerated rights, such as those contained in the Civil Rights Act of 1866, and authorizes Congress to enact protective legislation. Neither of us, however, has engaged with Kurt Lash’s most recent and unique two-class interpretation of the original meaning of the Privileges or Immunities Clause in the depth that it deserves. Nor have we evaluated his recent efforts to demonstrate that the Fourteenth Amendment’s Due Process of Law Clause empowers the federal courts and Congress to protect unenumerated …

The Enumerated-Rights Reading Of The Privileges Or Immunities Clause: A Response To Barnett And Bernick, Kurt T. Lash

Notre Dame Law Review

In their new article, The Privileges or Immunities Clause, Abridged: A Critique of Kurt Lash on the Fourteenth Amendment, Randy Barnett and Evan Bernick insist that this historical evidence does not support the enumerated-rights reading. Instead, Barnett and Bernick embrace what I call the “fundamental-rights” reading of the Privileges or Immunities Clause. This view maintains that the Clause should be understood as protecting a set of absolute rights nowhere expressly enumerated in the text of the Constitution, for example the unenumerated economic right to contract or to pursue a trade.

Rather than agreeing with John Bingham, Barnett and Bernick …

Rediscovering Corfield V. Coryell, Gerard N. Magliocca

Notre Dame Law Review

This Article reveals new details about Corfield v. Coryell based on archival research. In 2017, the author found Justice Washington’s original notes on Corfield in the Chicago History Museum. The most important revelation about Corfield is that the Justice was initially inclined to hold that the state law his decision upheld was, in fact, unconstitutional under the Privileges and Immunities Clause. The notes also say that he saw Livingston v. Van Ingen as the leading precedent on the Privileges and Immunities Clause and backed Chancellor Kent’s view in that case that the Clause articulated a nondiscrimination rule for out-of-state citizens …

Changes Are Not Enough: Problems Persist With Ncaa's Adjudicative Policy, Elizabeth Lombard

Notre Dame Law Review

Recently, the critical eye of the public has focused on the adjudicative and enforcement policy of the National Collegiate Athletic Association (NCAA). Social media sites serve as a testament to the rampant shock and confusion that the general population has harbored with regard to the enforcement and adjudication process on the heels of recent, high-profile cases. Witnessing verified sports reporters and outlets refer to the NCAA as powerless or questioning its purpose or existence altogether is evidence of the NCAA’s trying times in the court of public opinion. On the one hand, and rightfully so, one might think that this …

The United States, The International Criminal Court, And The Situation In Afghanistan, Sara L. Ochs

Notre Dame Law Review Reflection

The United States has always had a very complicated and tense relationship with the International Criminal Court (ICC) and with international criminal law generally. Yet, under the Trump administration, the U.S.–ICC relationship has deteriorated to an unprecedented level. Within the last few years, the U.S. government has launched a full-scale attack on the ICC—denouncing its legitimacy, authority, and achievements, blocking investigations, and loudly withdrawing all once-existing support for the court.

These hostilities bubbled over following the November 2017 request by the ICC Chief Prosecutor, Fatou Bensouda, for the court to open an investigation into alleged war crimes and crimes against …

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 …

Improving Human Rights Compliance In Supply Chains, Kishanthi Parella

Notre Dame Law Review

Corporations try to convince us that they are good global citizens: “brands take stands” by engaging in cause philanthropy; CEOs of prominent corporations tackle a variety of issues; and social values drive marketing strategies for goods and services. But despite this rhetoric, corporations regularly fall short in their conduct. This is especially true in supply chains where a number of human rights abuses frequently occur. One solution is for corporations to engage in meaningful human rights due diligence that involves monitoring human rights, reporting on social and environmental performance, undertaking impact assessments, and consulting with groups whose human rights they …

Prior Art In The District Court, Stephen Yelderman

Notre Dame Law Review

This Article is an empirical study of the evidence district courts rely upon when invalidating patents. To construct our dataset, we collected every district court ruling, verdict form, and opinion (whether reported or unreported) invalidating a patent claim over a six-and-a-half-year period. We then coded individual invalidity rulings based on the prior art supporting the court’s decision, observing 3320 invalidation events relying on 817 distinct prior art references.

The nature of the prior art relied upon to invalidate patents is relevant to two distinct sets of policy questions. First, this data sheds light on the value of district court litigation …

De Facto State: Social Media Networks And The First Amendment, Paul Domer

Notre Dame Law Review

In Marsh v. Alabama, a Jehovah’s Witness was arrested and convicted of trespassing for proselytizing on a public sidewalk that nonetheless was, like everything else in the “company town,” privately owned. The Court reversed, holding that the First and Fourteenth Amendments applied against a private actor if it exercised all the powers and responsibilities traditionally associated with a government—policing, utilities, and traffic control, for example. Writing for the majority, Justice Black declared, “The more an owner, for his advantage, opens up his property for use by the public in general, the more do his rights become circumscribed by the …

Mmu: 11/25/19–12/01/19, Student Bar Association

Monday Morning Update

This Week @ NDLS

• Diversity in Government and Working for a United State’s Attorney’s Office: A Conversation with Peter Salib, AUSA, USAO for the Northern District of Illinois in Chicago
• Daily Commons Menu Specials
• Daily Mass Schedule
• Morning Prayer with CLS
• Thanksgiving Break
• Go Irish! Beat Stanford!

General Announcements

• New Dublin summer internship program
• LVCY Angel Tree
• Legal Writing Center
• Volunteer Opportunity at Green Bridge Growers
• IDEA Center Student Connections
• Circulation Desk Hours
• SBA Store Hours
• Health & Wellness Center
• Notice to student visitors to Sinai Synagogue
• Mock Trial Coaches Wanted
• Advertise Law School Events on the Law Library e-board …

Mmu: 11/18/19–11/24/19, Student Bar Association

Monday Morning Update

This Week @ NDLS

• "Sorry, I Can't"–Managing Stress When You Feel Like You Can't Say "Yes" to Spending Time on Those You Care About
• Scheduling How-to
• Daily Commons Menu Specials
• Daily Mass Schedule
• Morning Prayer with CLS
• Last SBA Monthly Meeting of the Semester
• Dublin Summer Internship Program Information Session
• Scheduling for London
• Professor Series: The Mischief Rule–Sam Bray
• The Troy Davis Case: Executing the Innocent?
• White & Case and Business Law Forum Chat
• Legal Voices for Children and Youth to host Judge Peter Bogaard (New Jersey Superior Court)
• Go Irish! Beat the Terriers!

General Announcements

• LVCY (Legal Voices for …

Mmu: 11/11/19–11/17/19, Student Bar Association

Monday Morning Update

This Week @ NDLS

• Monday Morning Message from President Patel
• Transnational Prosecutions
• SCELF's Baseball Salary Arbitration Final Championship Round
• Information Session for Notre Dame's Clinics
• 1L Job Application Process
• Daily Commons Menu Specials
• Daily Mass Schedule
• Game Night
• Morning Prayer with CLS
• SCELF: Under Armour Rep to speak to Mendoza and NDLS
• Contempt of Grace: The Theological and Legal Error of William Barr’s Understanding of Religious Freedom
• Bar Prep Courses – What’s the Difference?
• [Rescheduled] Health Insurance Qs Drop-In
• DACA Oral Arguments Lunch
• “The Effects of the Pill upon Natural and Human Ecology”
• Lambda Legal: A Civil Rights Leader for …

Mmu: 11/04/19–11/10/19, Student Bar Association

Monday Morning Update

This Week @ NDLS

• Monday Morning Message from President Patel
• Externship Q&A Session
• Lunch Conversation with Prof. Paolo Carozza
• Daily Commons Menu Specials
• Daily Mass Schedule
• Morning Prayer with CLS
• Father Mike Informational Meeting
• Deadline for Spring 2020 Externship Applications
• EBB Training Session (Mac users)
• Interview Workshop #1
• New York Bar Exam Application
• My 1L Summer Experience: A Student Panel
• Galilee Program on Professionalism and Networking
• JAG Panel
• Interview Workshop #2
• Roaming Free: Wild Horses, Conservation, and the American West
• The Federalist Society with DeNicola Center for Ethics and Culture, and the Christian Legal Society Present: The Decline of Mercy …

Why Section 230 Is Better Than The First Amendment, Eric Goldman

Notre Dame Law Review Reflection

47 U.S.C. § 230 (“Section 230”) immunizes Internet services from liability for third-party content. This immunity acts as a crucial legal foundation for the modern Internet. However, growing skepticism about the Internet has placed the immunity in regulators’ sights.

If the First Amendment mirrors Section 230’s speech protections, narrowing Section 230 would be inconsequential. This Essay explains why that is not the case. Section 230 provides defendants with more substantive and procedural benefits than the First Amendment does. Because the First Amendment does not backfill these benefits, reductions to Section 230’s scope pose serious risks to Internet speech.

Should Affirmative Action Public Contracts Constitute Government Benefits? Calculating Procurement Fraud Loss Under Section 2b1.1(B)(1), Adam Kwon

Notre Dame Law Review Reflection

Congress has established a program (the section 8(a) program) that, despite having taken various forms over the years, has worked to benefit disadvantaged business entities and, by extension, the socioeconomically disadvantaged individuals who run them by setting aside and awarding to those entities opportunities to perform on certain designated public contracts. Occasionally, people either lie ex ante or fail to fulfill obligations ex post in order to fraudulently procure these section 8(a) contracts (i.e., they commit procurement fraud).

This fairly esoteric area of the law is disoriented by a circuit split over how to sentence such white-collar defendants (if convicted) …

Making Money Safe, John Crawford

Notre Dame Law Review Reflection

Providing better options to hold money safely is desirable and feasible; failure to do so is a serious but fixable flaw in the legal architecture of money and payments in the United States. There have been a handful of proposals to mitigate this problem. The Federal Reserve (the Fed), however, is currently resisting an attempt to contribute to this effort. The project involves a new bank called “TNB USA Inc.” (TNB), which proposes to hold as its sole investment asset a reserve account at the Fed. (One of the Fed’s principal functions is to serve as a banks’ bank, providing …

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 …

Antitrust Violations As Private Enforcement, Abby L. Timmons

Notre Dame Law Review Reflection

On the whole, the dismantling of monopolies relies heavily on public enforcement. While the opportunity for private enforcement exists in the antitrust context, it is limited, as not all so-called "monopolies" commit antitrust violations. For example, where barriers to entry in a particular industry are high—such as in the case of phone carriers or airlines, both of which must build an infrastructure to support their business—sufficient competition may not exist to create options for the consumer. In situations like these, the federal government generally must step in to break up the monopoly. However, this interference happens infrequently, and these efforts …

Lane Violation: Why The Ncaa's Amateurism Rules Have Overstepped Antitrust Protection & How To Correct, Alexander Knuth

Notre Dame Law Review Reflection

The NCAA is in the midst of an era that will define the future of collegiate athletics and determine how young people participate in sports for the foreseeable future. This Essay ultimately concludes that both the NCAA and its athletes would benefit from a system that allows for the exploitation of athletes' name, image, or likeness (NIL) rights while preserving the core educational and nonprofessional nature of college sports as a product. Currently the NCAA requires its athletes to maintain a very broadly defined amateur status to remain eligible for competition. The current amateurism definition states that athletes must forego …

Mmu: 10/28/19–11/03/19, Student Bar Association

Monday Morning Update

This Week @ NDLS

• Monday Message from President Patel
• Professor Series: Legal & Policy Issues in Intercollegiate Athletics–Professor Tricia Bellia
• IPLS: The Unconstitutionality of Overlapping Trade Dress and Design Patent Protection
• Institute for Justice: Litigating for Liberty
• Academic Success Workshop
• Remain in Mexico: How Tent Courts Fail Asylum Seekers and Abandon Due Process
• Daily Commons Menu Specials
• Daily Mass Schedule
• Women of Color in Law
• A Conversation with Klau Center for Civil & Human Rights Fellows
• SBA Power Lunches
• Morning Prayer with CLS
• Public Interest Jobs: Summer and Postgraduate Timeline
• Transitioning from Private Practice to Government and Back Again
• Notre …

Mmu: 10/14/19–10/20/19, Student Bar Association

Monday Morning Update

This Week @ NDLS

• Business Law Forum: A chat with Amazon's Jeff Hasselman
• “The Placenta and Fetomaternal Microchimerism: Radical Mutuality at the Cellular Level”: A lecture by Kristin Collier
• Daily Commons Menu Specials
• Daily Mass Schedule
• Game Night
• Criminal Law Careers–Public Interest Month Event
• Pro-Life Feminism hosted by Jus Vitae
• Air Force JAG
• Business Law Forum: 2L In-House Internship Panel
• "Sex" & the Scope of Title VII
• HSLA & BSLA: How to Outline
• Kellog Institute: Interdiscplinary Approaches to Corruption Workshop
• Externship Opportunities–Hosted by Professor Jones
• Careers in Public Finance (Chapman & Cutler)
• Assistant Rector Information Session
• What Every American Needs …

Mmu: 10/07/19–10/13/19, Student Bar Association

Monday Morning Update

This Week @ NDLS

• Happy Spirit Week!
• Indiana Court of Appeals Oral Argument
• Daily Commons Menu Specials
• Daily Mass Schedule
• Morning Prayer with CLS
• SBA Monthly Meeting
• Bar Exam Applications
• From Big Law to Legal Aid
• Bose McKinney Diversity Fellowship
• First Generation Rock Stars: Seven Ways to Invest in Yourself
• Apple Inc. Legal Counsel (FaceTime) lunch chat with Matthew Smith
• Join the Idea Center!
• Moot Court Fundraiser
• SCELF: MLB Salary Arbitration Tournament Info Meeting
• Implicit Bias in the Law: A Conversation with Professor Shelley Cavalieri
• Taking Charge of your loans
• Professor Series: Parental Choice and Educational Pluralism in the US …

Notre Dame Law School Sesquicentennial Reception, Marcus Cole, Nancy Gargula, William Beauchamp, C.S.C., Gerard Olinger, C.S.C.

2019–Present: G. Marcus Cole

Oct 4, 2019

Notre Dame Law School is celebrating its 150th year in 2019. Alumni, students, faculty, and staff celebrated the sesquicentennial with a reception on September 27, 2019, in the Dahnke Ballroom in Duncan Student Center.

G. Marcus Cole, who was appointed as Notre Dame Law School's Joseph A. Matson Dean and Professor of Law earlier in the year, delivered the keynote speech at the reception. His speech starts at the 7:40 mark in this video.

2019–2020 Bulletin Of Information, Notre Dame Law School

Bulletins of Information

CONTENTS

• Admissions Information
• Academic Calendar
• Tuition and Fees
• Academic Requirements
• Senior Administrative Leadership
• Hoynes Code, Revised November 21, 2018

Red Mass Invitation 2019, Notre Dame Law School

The Red Mass

Most. Rev. Kevin C. Rhoades, Bishop of Fort-Wayne-South Bend the Notre Dame Law School, Department of Political Science , and Interdisciplinary Program in Constitutional Studies, and the Saint Thomas More Society of South Bend cordially invite you to the 2019 Red Mass. September 30, 2019, 5:15 p.m., Basilica of the Sacred Heart Notre Dame

Reception immediately following the Red Mass: Eck Commons • Notre Dame Law School

Mmu: 09/30/19–10/06/19, Student Bar Association

Monday Morning Update

This Week @ NDLS

• Annual Red Mass
• Public Interest Month Kickoff: A Conversation with the 2018 Shaffer and Bank of America Foundation Public Interest Fellows
• Environmental Law Society Guest Speaker Rob Lee
• Daily Commons Menu Specials
• Daily Mass Schedule
• SBA Store Hours
• 1L Mentorship Program Meet-and-Greet Breakfast
• DOJ Careers & How to Write Great Application Essays
• Conversation with Judge Greg Katsas of the United States Court of Appeals for the D.C. Circuit
• SBA Diversity and Inclusion Committee Introductory Meeting
• Health & Human Rights Law
• CDO Resume Workshop #13
• Innocence-Driven Career Paths
• Bar Prep Basics for 3Ls
• Health Law Society Guest …

Mmu: 09/23/19–09/29/19, Student Bar Association

Monday Morning Update

This Week @ NDLS

• Tabor Hill Winery Tour Tickets
• Free Speech, Same-Sex Marriage, and Anti Discrimination Laws
• CDO Resume Workshop 10
• CDO Mentorship Program Information Session
• CDO Resume Workshop 11
• Daily Commons Menu Specials
• SBA Store Hours
• Daily Mass Schedule
• Education Law Forum Introductory Meetins
• CDO's U.S. Army JAG Info Session
• CO Resume Workshop 12
• STMS Event: "Cardinal Pell's Unsuccessful Appeal–and Reason for Hope"
• Fall Ball 2019 Tickets on Sale
• SCELF Event: USA Gymnastics Counsel, Mark Busby
• Civility: Searching for the Better Angels of our Future
• A Different Kind of Lawyer 10 Years Out
• Legal Observer Training
• Women's Legal Forum …