Law Commons^™

Family Law—Breach Baby: An Argument For Equal Enforcement Of Traditional And Gestational Surrogacy Contracts, James M. Gift

University of Arkansas at Little Rock Law Review

No abstract provided.

Up In Smoke: Bankruptcy And Cannabis, Peter C. Alexander

University of Arkansas at Little Rock Law Review

No abstract provided.

Civil Rights Law—Questioning Mcdonnell Douglas? #Metoo.: Resolving The Mcdonnell Douglas Mixed-Motive Question By Adopting The Sixth Circuit’S Preference For Hearing Victims, Laura O’Hara

University of Arkansas at Little Rock Law Review

No abstract provided.

New Contexts And Special Factors: The Court’S New Bivens Framework, Alexander J. Lindvall

University of Arkansas at Little Rock Law Review

No abstract provided.

Moving The Needle: Two Promising Tools To Attack Arkansas’S Racial Disparity In Criminal Sentencing, Anastasia M. Boles

University of Arkansas at Little Rock Law Review

No abstract provided.

Faculty Services Newsletter, Maggie Kiel-Morse

Faculty Services Newsletter

No abstract provided.

Bicentennial Alumni Research Project, Indiana University Maurer School Of Law

Historic Documents

In summer 2020, eighteen incoming law students (0Ls) were chosen as IU Maurer School of Law Bicentennial Research Scholars to work with Dean Austen Parrish and Libby Steinbach (Executive Assistant in the Dean's Office) over a two-month period in June and July 2020. The scholars were asked to interview a range of alumni who volunteered to be interviewed and who have played an important role in the life of law school. Scholars were tasked with writing an alumni profile for each alumnus interviewed. This report is the result of those efforts and a compilation of the alumni profiles.

Data Protection In Disarray, Thomas D. Haley

Washington Law Review

Businesses routinely lose or misuse individuals’ private information, with results that can be devastating. Federal courts often leave those individuals without legal recourse by dismissing their lawsuits for lack of standing, even though plaintiffs in these cases provide stronger showings of harm than courts usually require. Using an original data set, this Article shows how standing analysis in these cases has gone awry and argues that the standing inquiry in today’s data-protection cases harms both public policy and standing doctrine.

This Article makes three contributions to literatures in federal courts and privacy. First, it shows that current federal court practice …

Surveilling The Digital Abortion Diary, Cynthia Conti-Cook

University of Baltimore Law Review

No abstract provided.

Female Student Patient "Privacy" At Campus Health Clinics: Realities And Consequences, Lynn M. Daggett

University of Baltimore Law Review

No abstract provided.

Balancing Benefits And Harms Of Sexual Orientation And Gender Identity Genomics Research: Legal And Life Implications, Lisa E. Smilan

University of Baltimore Law Review

No abstract provided.

A Call To Action: What Maryland Schools Are Doing To Protect Children And Why Other States Should Follow Suit, Kelsey Lear

University of Baltimore Law Review

No abstract provided.

Growing Up In Prison: Rethinking Juvenile Offender Parole Hearings To Eliminate Essential Life Sentences, Jenna Mcgreevy

University of Baltimore Law Review

No abstract provided.

"The Testament Of My Wanderings In The Weary Land" A Trial Attorney And The Search For A Story, Charles I. Joseph, Gillian Drake, Kailey Silverstein

University of Baltimore Law Forum

No abstract provided.

Recent Developments: Baltimore City Police Department V. Potts, Renee Boyd

University of Baltimore Law Forum

No abstract provided.

Underwriting Criteria, Practices, And Tools Of Pet Health Insurance Companies, Kimberly L. Wilson

Connecticut Insurance Law Journal

This article examines the underwriting criteria, practices, and tools of pet insurance companies. While companies that sell pet insurance policies are generally transparent about who their underwriting company is, underwriting rules are not as readily available and require consumers to navigate the System for Electronic Rates and Forms Filing (SERFF) online interface. Because pet "health" insurance is actually a form of property and casualty insurance, the underwriters are, as expected, typically property and casualty companies. This paper explores the current pet health insurance landscape and how pet insurance underwriters incorporate quasi-medical underwriting into their pet insurance policies.

The Abandoned Wards Of Admiralty: The Supreme Court’S Course Change On The Availability Of Punitive Damages To Seamen In Unseaworthiness Claims, Hillary Smith Weise

Washington Law Review

This Comment compares Dutra Group v. Batterton and Tabingo v. American Triumph LLC, two significant but contradictory admiralty decisions on the availability of punitive damages in unseaworthiness claims. It argues that the Washington State Supreme Court’s decision in Tabingo—that punitive damages should be permissible in unseaworthiness claims—is far better from both policy and doctrinal standpoints. From a doctrinal perspective, maritime law has traditionally permitted punitive damages in admiralty cases. Therefore, it would have been more appropriate for the Court to adhere to the principle that it is better to allow a remedy in admiralty proceedings so long as …

Designing The Legal Architecture To Protect Education As A Civil Right, Kimberly J. Robinson

Indiana Law Journal

Although education has always existed at the epicenter of the battle for civil rights, federal and state law and policy fail to protect education as a civil right. This collective failure harms a wide array of our national interests, including our foundational interests in an educated democracy and a productive workforce. This Article proposes innovative reforms to both federal and state law and policy that would protect education as a civil right. It also explains why the U.S. approach to education federalism will require legal reforms by both levels of government to protect education as a civil right.

Rethinking Standards Of Appellate Review, Adam Steinman

Indiana Law Journal

Every appellate decision typically begins with the standard of appellate review. The Supreme Court has shown considerable interest in selecting the standard of appellate review for particular issues, frequently granting certiorari in order to decide whether de novo or deferential review governs certain trial court rulings. This Article critiques the Court's framework for making this choice and questions the desirability of assigning distinct standards of appellate review on an issue-by-issue basis. Rather, the core functions of appellate courts are better served by a single template for review that dispenses with the recurring uncertainty over which standard governs which trial court …

"Water Is Life!" (And Speech!): Death, Dissent, And Democracy In The Borderlands, Jason A. Cade

Indiana Law Journal

Decades of stringent immigration enforcement along the Southwest border have pushed migrants into perilous desert corridors. Thousands have died in border regions, out of the general public view, yet migrants continue to attempt the dangerous crossings. In response to what they see as a growing humanitarian crisis, activists from organizations such as No More Deaths seek to expand migrant access to water, to honor the human remains of those who did not survive the journey, and to influence public opinion about border enforcement policies. Government officials, however, have employed a range of tactics to repress this border-policy "dissent," including blacklists, …

Maximizing The Value Of America’S Newest Resource, Low- Altitude Airspace: An Economic Analysis Of Aerial Trespass And Drones, Tyler Watson

Indiana Law Journal

Recognizing that tort law is a unique area of law that was judicially created by rational human beings with an innate sense of economic justice, this Note seeks to apply positive economic theory—derived from ex post analyses of tort cases—to an ex ante analysis to predict how and to what extent the existing and proposed aerial trespass rules will further economic efficiency in the context of drones and airspace rights. Part I will provide (1) an overview of the Federal Aviation Administration’s (FAA) current regulatory framework and the development of the common law aerial trespass doctrine and (2) an overview …

How To Fix Legal Scholarmush, Adam Kolber

Indiana Law Journal

Legal scholars often fail to distinguish descriptive claims about what the law is from normative claims about what it ought to be. The distinction couldn’t be more important, yet scholars frequently mix it up, leading them to mistake legal authority for moral authority, treat current law as a justification for itself, and generally use rhetorical strategies more appropriate for legal practice than scholarship. As a result, scholars sometimes talk past each other, generating not scholarship but “scholarmush.”

In recent years, legal scholarship has been criticized as too theoretical. When it comes to normative scholarship, however, the criticism is off the …

Consent To Student Loan Bankruptcy Discharge, John P. Hunt

Indiana Law Journal

As the Department of Education reconsiders its rules governing consent to discharge of federal student loans in bankruptcy, this Article argues for the first time that the Department should approach the problem specifically as an operator of programs to promote education and benefit students, rather than as an entity interested only in debt collection. This Article shows that the Department’s rules to date have treated whether to consent to discharge primarily as a pecuniary issue, without regard to the educational goals of the student loan programs. For example, the Department apparently has never considered whether making it difficult to discharge …

Patent Accidents: Questioning Strict Liability In Patent Law, Patrick R. Goold

Indiana Law Journal

Accidental infringement of patent rights is a pervasive and growing problem in the Information Age. As IP rights proliferate and expand in scope, it is becoming increasingly easy for companies and individuals to inadvertently infringe patents. When such accidental infringement occurs, patent law holds the infringer strictly liable. This contrasts with many areas of tort law where defendants are only liable if they act negligently.

This Article questions the normative desirability of strict liability in patent law. Assuming the primary value of patent law is utilitarian, this Article poses the research question: what liability rule will maximize social welfare? This …

Gerrymandering & Justiciability: The Political Question Doctrine After Rucho V. Common Cause, G. Michael Parsons

Indiana Law Journal

This Article deconstructs Rucho’s articulation and application of the political question doctrine and makes two contributions. First, the Article disentangles the political question doctrine from neighboring justiciability doctrines. The result is a set of substantive principles that should guide federal courts as they exercise a range of routine judicial functions—remedial, adjudicative, and interpretive. Rather than unrealistically attempting to draw crisp jurisdictional boundaries between exercises of “political” and “judicial” power, the political question doctrine should seek to moderate their inevitable (and frequent) clash. Standing doctrine should continue to guide courts in determining whether they have authority over a case involving a …

Toward A Theory Of Intercountry Human Rights: Global Capitalism And The Rise And Fall Of Intercountry Adoption, Barbara Stark

Indiana Law Journal

This Article proposes another mechanism for enforcement, an alternative to self-serving domestic policing and weak international bureaucracy. “Intercountry,” as opposed to “international,” human rights would apply to specific rights in specific contexts and be enforceable through the legal mechanisms and other resources of the state parties that accepted them. Intercountry adoption is a useful context in which to consider this proposal for several reasons.

First, as a practical matter, there have probably never been more babies and children in orphanages, on the street, on the market, or on their own. Yet intercountry adoptions have declined to levels not seen for …

Secret Faits Accomplis: Declination Decisions, Nonprosecution Agreements, And The Crime Victim’S Right To Confer, Zulkifl M. Zargar

Fordham Law Review

The state’s monopoly power over the institution of prosecution is a feature as familiar as any in the American criminal justice system. That the criminal proceeding is between the state and the defendant leaves little doubt as to the identities of the victimized interest and the offender. But, in avenging societal harm alone, the criminal process treats another victim—the crime victim— as an outcast. Beginning in the 1970s, the victim’s rights movement mobilized to address this institutional neglect, and, by most accounts, it has triumphed. Federal and state victim’s rights laws now empower victims to attend criminal proceedings, deliver impact …

The Patent Bar Gender Gap: Expanding The Eligibility Requirements To Foster Inclusion And Innovation In The U.S. Patent System, Mary T. Hannon

IP Theory

No abstract provided.

Notre Dame Lawyers Connect: October–November 2020, Notre Dame Law School

Notre Dame Lawyers Connect

Top Story: Amy Coney Barrett '97 J.D. sworn in as U.S. Supreme Court justice

Faculty News: ND Law says farewell to retiring faculty

• Former Dean Patricia O'Hara
• Professor John Finnis
• Research Librarian Dwight King
• Research Librarian Warren Rees

Upcoming Event: Representing Jacob Blake: A Conversation with Patrick Salvi II and Sunny Hostin

Loan Repayment Assistance Program applications due November 1

Student News: Women's Legal Forum Newsletter

Alumni Notes

• Alexa Baltes
• W. Scott Hardy
• Jackie B. Wilson II

Giving to Notre Dame: Order of St. Thomas More

Errors And Insights, Patrick Barry

Articles

In Seeing What Other's Don't, the psychologist Gary Klein suggests that only focusing on reducing errors limits our ability to improve. We also need to spend time increasing insights. This short essay applies Klein's approach to writing and editing.