Law Commons^™

Following The Framework: Intentional Genomic Alterations In Animals, Sarah Copper

Journal of Food Law & Policy

Intentional genomic alterations in animals or genetically engineered animals have existed in their modern form since the 1980s. However, the introduction of these animals into our food supply has been a more recent development. The federal government has taken steps in an attempt to regulate these products in a streamlined and efficient manner but has faced criticism in their approach. While the Food and Drug Administration (“FDA”) is currently responsible for the regulation of intentional genomic alterations (“IGAs”) in animals, there is significant effort behind transferring that oversight to the United States Department of Agriculture (“USDA”). However, in the meantime, …

Liability For Public Deception: Linking Fossil Fuel Disinformation To Climate Damages, Jessica A. Wentz, Benjamin Franta

Sabin Center for Climate Change Law

Over two dozen U.S. states and municipalities have filed lawsuits against fossil fuel companies, seeking abatement orders and compensation for climate damages based on theories such as public nuisance, negligence, and failure to warn, and alleging these companies knew about the dangers of their products, intentionally concealed those dangers, created doubt about climate science, and undermined public support for climate action. This Article examines how tort plaintiffs can establish a causal nexus between public deception and damages, drawing from past litigation, particularly claims filed against manufacturers for misleading the public about the risks of tobacco, lead paint, and opioids. A …

Let's Get Real: Weak Artificial Intelligence Has Free Speech Rights, James B. Garvey

Fordham Law Review

The right to free speech is a strongly protected constitutional right under the First Amendment to the U.S. Constitution. In 2010, the U.S. Supreme Court significantly expanded free speech protections for corporations in Citizens United v. FEC. This case prompted the question: could other nonhuman actors also be eligible for free speech protection under the First Amendment? This inquiry is no longer a mere intellectual exercise: sophisticated artificial intelligence (AI) may soon be capable of producing speech. As such, there are novel and complex questions surrounding the application of the First Amendment to AI. Some commentators argue that AI …

Medical Harm Without Negligence, Valerie Gutmann Koch

Fordham Law Review

In December 2019, seven women from one family underwent highly invasive surgeries based on genetic test results that indicated that each were at significant risk of developing cancer by age seventy. Subsequently, after procedures that (among other things) permanently scarred and disfigured their bodies and ended their chances of having biological children, they learned that their particular mutation was not, in fact, pathogenic.

This Article focuses on a previously under-recognized problem: what happens when a patient’s previously classified pathogenic variant is downgraded to uncertain (or even benign) status? Intuitively, it might seem that the genetic testing company, the surgeons, or …

Tragedies Of The Cultural Commons, Etienne C. Toussaint

Faculty Publications

In the United States, Black cultural expressions of democratic life that operate within specific historical-local contexts, yet reflect a shared set of sociocultural mores, have been historically crowded out of the law and policymaking process. Instead of democratic cultural discourse occurring within an open and neutral marketplace of ideas, the discursive production and consumption of democratic culture in American politics has been rivalrous. Such rivalry too often enables dominant White supremacist cultural beliefs, values, and practices to exercise their hegemony upon law’s production and meaning. The result has been tragedy for politically disempowered and socioeconomically excluded communities.

This Article uses …

The Death Of Amateurism In The Ncaa: How The Ncaa Can Survive The New Economic Reality Of College Sports, Claire Haws

Michigan Business & Entrepreneurial Law Review

In October 2019, the National Collegiate Athletic Association (NCAA) announced it would be making a major change to its rules: student-athletes would soon be permitted to receive compensation for the use of their name, image and likeness (NIL). The announcement came in response to an increasing volume of state legislation allowing for student-athlete NIL compensation. On July 1, 2021, student-athletes finally had the opportunity to receive NIL benefits as the NCAA’s interim NIL policy went into effect. This change represents a nail in the coffin for traditional notions of amateurism.

For decades, the NCAA defended its rules from antitrust challenges …

Nonexclusive Functions And Separation Of Powers Law, Ilan Wurman

Minnesota Law Review Vols. 106:2 onward (2021-present)

The Constitution’s text, structure, and history suggest that some governmental functions strictly and exclusively appertain to a particular branch, and to the exercise of a single vested power. Many governmental functions, however, are nonexclusive: their exercise has some combination of legislative, executive, and judicial characteristics and, as a result, can be exercised by different branches exercising different vested powers. This Article proposes to reorient our thinking around exclusive and nonexclusive governmental functions, and demonstrates how doing so clarifies many existing doctrines and debates in administrative and separation of powers law. This approach differs in important respects from standard functionalist and …

The Judicial System’S Unjust Relationship With Attorney-Client Privilege: How Judges Knowingly (And Erroneously) Abrogate Important Contractual Arrangements In Corporate Transactions, Edward S. Adams

Michigan Business & Entrepreneurial Law Review

A Delaware court has recently recognized the need to enforce contracts that delineate where the attorney-client privilege rests after an asset transfer. This Article will argue that courts across the country should recognize the important and legitimate reasons for this type of decision. Part I will review how the attorney-client privilege functions for corporations and how courts respect the importance of the privilege in other contexts. Part II will review the fundamental corporate changes in which these questions can arise and situations in which courts choose to recognize the importance of protecting the attorney-client privilege. Part III will argue that …

Closing The Auditor Loophole: Towards A More Perfect Work-Product Waiver Doctrine, Evan Mulbry

Michigan Business & Entrepreneurial Law Review

The Supreme Court created strong protections for the attorney’s thought processes and analysis in Hickman v. Taylor. However, the Court in Arthur Young & Co. created a loophole enabling opposing lawyers to access the lawyer’s thought processes and legal strategies. This loophole was created when the Court allowed discovery of an auditor’s tax workpapers, and lower courts then interpreted this decision to imply that disclosing information to the outside auditor constitutes a waiver of attorney work-product protections. This loophole can be corrected through a Congressional statute that impacts the Federal Rules of Evidence, which would protect communications between outside auditors …

Essential Property, Timothy M. Mulvaney, Joseph William Singer

Minnesota Law Review Vols. 106:2 onward (2021-present)

For a sizable swath of the U.S. population, incomes and wealth are insufficient to cover life’s most basic necessities even in the most ordinary of times. A disturbingly resilient explanation for this state of affairs rests on the view that resource inequities are avoidable through self-reliance, a stance that invites observers to see people in poverty as morally suspect. This Article advances a counterview in contending that the widespread lack of essential resources did not simply arise naturally via individuals’ life choices but instead has been, in very meaningful part, created and perpetuated by our system of property laws. The …

Say It Ain’T Roe: Dobbs And Reason Bans Are Trojan Horses For The Down Syndrome Community, Calvin Lee

Minnesota Law Review Vols. 106:2 onward (2021-present)

In recent times, one of the most in vogue methods for curtailing abortion rights has been through the enactment of “reason bans,” statutes precluding abortions if the procedure is being sought due to the sex, race, or potential genetic abnormality of the fetus. This note_comment focuses on the contemporary litigation and discourse concerning reason bans’ genetic abnormality prong. In the immediate lead-up to the Supreme Court’s ruling in Dobbs, several reason ban statutes faced facial challenges in federal court, with the plaintiffs alleging that the statutes violated Casey’s undue burden standard by imposing categorical prohibitions on pre-viability abortions. Reason ban …

Minimum Deadly Contacts, Jesse Noltimier

Minnesota Law Review Vols. 106:2 onward (2021-present)

Domestic violence is a national epidemic. Roughly one in three women will experience some form of domestic violence during their lifetime. Women are also seventy times more likely to be killed in the two weeks after leaving their intimate partner than at any other time during their relationship. Thus, it is not surprising that the only safe haven available to those who escape their abusers is often located outside of the state where the violence occurred. The difficulties do not end once a survivor moves to another state. If she wants to obtain a lifesaving domestic violence protection order, she …

Brady Lists, Rachel Moran

Minnesota Law Review Vols. 106:2 onward (2021-present)

Brady lists, named after the Supreme Court’s 1963 decision Brady v. Maryland, are lists some prosecutors maintain of law enforcement officers with histories of misconduct that could impact the officers’ credibility. The lists serve as tools for prosecutors to track officer misconduct and disclose that information to defense counsel where appropriate. Although Brady lists have existed in some form for decades, they have garnered considerably more attention and controversy in the past several years. Brady lists are the subject of extensive media interest and litigation, but surprisingly little legal analysis or scholarship. This article provides a thorough examination into laws …

Why Are There So Many Taxes?: Teleworking And The Multiple Taxation Dilemma—Time To Standardize And Apportion, Xiaoyuan Zhou

Minnesota Law Review Vols. 106:2 onward (2021-present)

Due in large part to the COVID-19 pandemic, remote teleworking has become the new norm for many professions. This dramatic shift in the workforce has raised serious tax concerns, and it has caused double taxation troubles for millions of remote workers. The fallout from COVID-19 continues to have a significant impact on the ways employers conduct business, with some major companies planning on a remote work mode permanently. This note_comment examines the current complicated and inconsistent state individual income tax schemes around the country. The goal is to urge Congress and the Supreme Court to reconsider the importance of this …

Notre Dame Lawyers Connect: December 2022, Notre Dame Law School

Notre Dame Lawyers Connect

Merry Christmas from ND Law!

Passing the baton at Jones Day

Chancellor McCormick speaks at ND Law

Honoring Father Link’s legacy

More news

• 2L Macio Sexton Jr.
• Honor Scholars Programs
• Dean G. Marcus Cole to be inducted into American College of Bankruptcy
• Professor Emily Bremer wins Emerging Scholar Award from AALS

Events

• Save the Date: March 2 Dean Marcus Cole and the Irish Theatre of Chicago present one-hour ethics CLE on the history of St. Thomas More and a reenactment of his trial
• Save the Date: September 23 The Law School’s 2023 Homecoming

In Memoriam - Paul J. Polking

Alumni …

Critical Race Feminism, Health, And Restorative Practices In Schools: Centering The Experiences Of Black And Latina Girls, Thalia González, Rebecca Epstein

Michigan Journal of Gender & Law

Restorative practices (RP) in K-12 schools in the United States have grown exponentially since the early 1990s. Developing against a backdrop of systemic racism, RP has become embedded in education practice and policy to counteract the harmful and persistent patterns of disparities in school discipline experienced by students of color. Within this legal, social, and political context, the empirical evidence that has been gathered on school-based restorative justice has framed and named RP as a behavioral intervention aimed at reducing discipline incidents—that is, an “alternative” to punitive and exclusionary practices. While this view of RP is central to dismantling discriminatory …

Gender And Corporate Crime: Do Women On The Board Of Directors Reduce Corporate Bad Behavior?, Ido Baum, Dalit Gafni, Ruthy Lowenstein Lazar

Michigan Journal of Gender & Law

Public debate on mandating gender representation on boards of directors in the United States is close to a boiling point. California introduced a mandatory quota in 2018 only to see it constitutionally disqualified in 2022, and the Nasdaq Stock Market followed suit with new diversity rules in 2021 for all corporations listed on the exchange. While public discourse focuses on corporate performance, not much is known about the link between gender diversity and corporate normative obedience.

In this study we explore the relationship between boardroom gender representation and corporate compliance with the law. We examine the impact of gender diversity …

International Investment Policy And The Coming Wave Of Data-Flow Disputes, Lucas Daniel Cuatrecasas

Michigan Business & Entrepreneurial Law Review

The ability to move digital data internationally has become an asset to countless businesses. Yet an increasing number of countries’ data regulations hinder these cross-border data flows. As such, many have speculated that companies could protect their interests in data flows through international investment law, a regime that lets companies sue foreign governments for harm to private assets. Yet the literature has largely been cursory or equivocal about these suits’ likely success. This Article argues that, under current law, such suits have a strong—if not unassailable—legal basis. Critically, the reality of global data regulation and digital commerce means such suits …

Jail Health And Early Release Practices, Brandon L. Garrett, Deniz Ariturk, Jessica Carda-Auten, David L. Rosen

William & Mary Bill of Rights Journal

Local jails in the United States incarcerate millions of people each year. The COVID-19 pandemic made jail health a pressing public health concern nationally, where releasing individuals from jails occurred across the country in order to prevent pandemic spread. But releases also faced substantial resistance and exposed long-standing challenges in delivering adequate healthcare in jail settings. People in jail have substantially higher levels of medical need than individuals in the general population, with large numbers having serious mental illnesses and substance use disorders. Further, overcrowded conditions and poor healthcare standards and delivery make jails harmful to those already-vulnerable people. What …

Table Of Contents

The University of New Hampshire Law Review

No abstract provided.

“Contrary To Law”: Determining The Scope Of Qualifying Predicate Offenses For 18 U.S.C. § 545, Arjun Prakash

University of Chicago Law Review

This Comment seeks to resolve an ongoing dispute among courts regarding the correct interpretation of “contrary to law” in 18 U.S.C. § 545, a statute that criminalizes the unlawful importation of goods. In particular, courts disagree about whether “contrary to law” includes administrative regulatory viol ations, which would massively expand the applicability of § 545’s severe criminal penalties.

This Comment argues that analyzing previous versions of § 545 and applying canons of statutory interpretation provide support for a narrow interpretation of the statute. But these lines of analysis do not definitively establish that this interpretation is correct. As a result, …

Ahs Residential, Llc., Order On Defendants' Motion To Exclude Opinions Of Plaintiff's Expert Witness Ian Ratner And Plaintiff Ahs Residential Llc's Motion To Limit The Testimony, Kelly L. Ellerbe

Superior Court of Fulton County: Metro Atlanta Business Case Division Opinions

No abstract provided.

Ahs Residential, Llc., Order On Motions For Summary Judgment, Kelly L. Ellerbe

Superior Court of Fulton County: Metro Atlanta Business Case Division Opinions

No abstract provided.

Weathering State And Local Budget Storms: Fiscal Federalism With An Uncooperative Congress, David Gamage, Darien Shanske, Gladriel Shobe, Adam Thimmesch

University of Michigan Journal of Law Reform

Throughout most of 2020, state and local governments faced severe budget crises as a result of the COVID-19 pandemic. Increased demand for state welfare services and rising state expenses related to controlling the spread of COVID-19 stretched state and local budgets to their breaking points. At the same time, layoffs, business closures, and social distancing measures reduced states’ primary sources of tax revenues. The traditional practice of American fiscal federalism is for the federal government to step in to provide aid during a national emergency of this magnitude, because state and local governments lack the federal government’s monetary and fiscal …

Committed To Commitment: The Problem With Washington State’S Involuntary Treatment Act, Hannah Garland

Washington Law Review

Washington State utilizes the Involuntary Treatment Act (ITA) to civilly commit individuals experiencing behavioral health crises. Although civil commitment involves stripping away fundamental rights, it receives less attention than criminal incarceration. The ITA is meant to protect not just the general community, but also the rights of people with behavioral health disorders who utilize the ITA system. Yet, its implementation tells a different story. Individuals in King County are detained and committed repeatedly, without receiving consistent care. Furthermore, the ITA disproportionately impacts unhoused individuals and Black individuals. As the ITA continues to grow both in utilization and expense, other community-based …

Masthead

The University of New Hampshire Law Review

No abstract provided.

A 60-Year March Requires Some Stretching: The Statutory Expansion Of The Civil Rights Act Of 1964, Rachel Coutinho

North Carolina Journal of Law & Technology

No abstract provided.

Hepatitis C Treatment In Prisons: How The Sixth Circuit's Interpretation Of The Deliberate Indifference Standard Fails To Protect Healthcare Rights Under The Eighth Amendment, Katie M. Deangelis

North Carolina Law Review

No abstract provided.

Keeping Counsel: Challenging Immigration Detention Transfers As A Violation Of The Right To Retained Counsel, Natasha Phillips

Michigan Journal of Race and Law

In 2019 U.S. Immigration and Customs Enforcement (“ICE”) incarcerated nearly 500,000 individuals. More than half of the individuals detained by ICE were transferred between detention facilities, and roughly thirty percent of those transferred were moved between federal circuit court jurisdictions. Detention transfers are isolating, bewildering, and scary for the detained noncitizen and their family. They can devastate the noncitizen’s legal defense by destroying an existing attorney-client relationship or the noncitizen’s ability to obtain representation. Transfers also obstruct the noncitizen’s ability to gather evidence and may prejudicially change governing case law. This Note describes the legal framework for transfers and their …

Exploring The Multiple Paradoxes And Challenges Of Uganda's Refugee Law, Policies And Practice, J. Oloka-Onyango

The Transnational Human Rights Review

Uganda has garnered considerable international praise for its ‘open-door’ policies on refugees. This is particularly the case against the backdrop of a global context of the growing phenomenon of states constructing physical and metaphorical walls against the phenomenon of migration, whether forced or voluntary. Nevertheless, such praise conceals a much more complex context of opportunistic strategizing, donor politics and regional geopolitical balancing. In sum, what is lauded as ‘progressive’ is much more problematic and nuanced, especially with respect to the issue of local integration (particularly for long-term refugees), voluntary repatriation and the management and funding of refugee support.