Law Commons^™

The World’S Oldest Profession Needs New Answers, Ariana Zaimi

Notre Dame Journal of Law, Ethics & Public Policy

No abstract provided.

The Case For Climate Refugee Protection, Nicole Theriot

Notre Dame Journal of Law, Ethics & Public Policy

No abstract provided.

Administrability Over Testamentary Freedom Of Disposition, Kevin Bennardo

Faculty Publications

This Article challenges the widely accepted view that testamentary freedom is the dominant principle of American inheritance law. It argues that administrability—the need for a predictable, efficient probate system—frequently overrides freedom of disposition. Examining executor selection, procedural constraints, contest doctrines, settlement mechanisms, and the pervasive role of judicial and statutory oversight, the Article shows that testators have far less control over the disposition of their estates than traditional rhetoric suggests. Because process shapes outcomes, limits on testators’ ability to control the probate process constitute significant limits on testamentary freedom. The Article also demonstrates how doctrines such as intestacy and settlement …

Blood Quantum And The Auto-Colonization Of The Michigan Anishinaabek, Matthew L.M. Fletcher

Book Chapters

Anishinaabe storyteller Basil Johnston described the chronological path of life in four stages, what he called the four hills of life. The first stage, linked to the East, is infancy and early childhood, a time of preparation and listening. The second stage, linked to the South, is youth, a time of doing things. The third stage, linked to the West, is adulthood, a time of vision. The fourth stage, linked to the North, is Old Age, a time of the fulfillment of the vision and a time of sacred learning and teaching.

The twelve Michigan Anishinaabek tribal nations are in …

Social Data's Role In Law And Political Economy, Salome Viljoen

Book Chapters

Over the past several years, the digital economy has been a notable uptick in interest from scholars across areas of law. This should come as no surprise. The digital economy encompasses some of the largest companies in the world, whose business models pioneer and spread new strategies to concentrate private power across the political economy more broadly. Digital companies have transformed commercial and social life, and they raise problems of concentrated private power. They are also charged with a slew of downstream disruptions resulting from collective pursuit of that power: global, social, and interpersonal forms of dislocation, oppression, impoverishment, alienation, …

Paraconsistency In Legal Systems: Why Not To Evaluate The Law With Classical Logic, Sydney Coddington

Electronic Theses & Dissertations (2024 - present)

The following paper puts forth an argument for the analysis of legal systems via paraconsistent logics instead of classical logic due to the existence of legal dialetheia - true contradictions born from the law. Given that contradictions lead to absurdity in classical logic, a paraconsistent perspective becomes the clear choice once the existence of legal dialetheia is established. The first half of this argument, therefore, aims to support the work of Graham Priest in establishing legal dialetheia by explaining his view and combatting his opponent, J.C. Beall, who finds such dialetheia to fail beyond the limited scope of a legal …

Effects Of Actualized Language Policy On Ukrainian Stability, 1989-2022, Dawn Hersey

Electronic Theses & Dissertations (2024 - present)

This dissertation seeks to generate a new perspective of the complicated relationship between actualized policy and stability through looking at Ukraine’s language policies and stability in a mixed manner approach that includes both primary and secondary sources. Russia justified its irridentist activities through claiming to protect Russian nationals within Ukraine’s borders: language policies within Ukraine appear to be a trigger for Russian antagonism. Neither Russian irridentism nor Ukrainian nationalism are being considered as right or wrong in this dissertation: the intent is to highlight trends, patterns, and perceptions in alignment with Ukrainian language policy. This dissertation does not present a …

Patriarch Kirill Of Moscow And All Russia: A True Patriarch Or A False One, A Senior Cleric Or A Senior Politician Of The Russian Federation? The Russian Patriarch And The War In Ukraine, Dilyan Nikolchev

Occasional Papers on Religion in Eastern Europe

This paper focuses on the behavior of the current Russian Orthodox Patriarch Kirill (Gundyaev) in the context of the Russia’s military aggression against sovereign Ukraine – a religious leader who fully supports the war policy of the Kremlin. The pro-war and pro-Putin views and messages of Patriarch Kirill proved him in the eyes of the Orthodox world more as a false Patriarch and a politician than as the primate of the Russian Orthodox Church. To a large extent, the Russian political narratives and ideology of the “Russian Peace” and “Holy Rus” doctrine are a product of the senior leadership of …

Freedom Of Expression, Collection Management, And Ethical Decision-Making: Censorship Of The Good, The Bad, The Ugly, And Our Obligations To Preserve A Culture's Story, Caroline L. Osborne

Faculty Publications

Libraries, archives, and museums are cultural memory organizations responsible for preserving and conveying a culture’s story. While they have broad editorial discretion in collection management, they also bear significant responsibility, relying on professionals with the expertise to make complex decisions. Practical constraints—such as space, finances, and biases—necessitate content-based limitations and collection policies. This article examines collection management through legal concepts like pure speech, expressive conduct, and state actor status under the First and Fourteenth Amendments, distinguishing viewpoint discrimination from content-based discrimination. It also explores ethical decisionmaking through the lenses of justice, virtue, and the common good.

Plastics, Carbon, Politics, And Experimentation In Environmental Governance, Donald T. Hornstein

Faculty Publications

This Article analyzes two major international environmental negotiations that concluded in late 2024 and uses them to explore emerging directions in plastics policy, carbon markets, and experimental forms of environmental governance. It examines the redesign of global carbon offset markets following the adoption of Article 6 mechanisms at COP 29, highlighting how new international standards and domestic U.S. initiatives seek to address longstanding concerns about offset quality while insulating climate policy from drastic federal political swings. The Article then evaluates the failed Busan negotiations toward a global plastics treaty, explaining how disagreements over production caps, consensus procedures, and the complexity …

Servicing Trade Dress: Demystifying The Tertium Quid, Dustin Marlan

Faculty Publications

Trademarks are often brand names or logos. Yet other marks involve the overall appearance of a product or business — a concept called “trade dress.” Courts and scholars have long struggled with how to determine whether trade dress is distinctive enough to function as a legally protectable trademark. In attempting to clarify this murky area, Justice Scalia articulated three types of trade dress in Wal-Mart Stores, Inc. v. Samara Brothers, Inc. These include (i) product packaging (e.g., a candy wrapper) and (ii) product design (e.g., an iPhone’s unique shape). The trouble lies in understanding the third category — what …

Reflections On The Ferguson Report, Eisha Jain

Faculty Publications

This Essay reflects on the significance of the Investigation of the Ferguson Police Department by the Civil Rights Division of the Department of Justice (“Ferguson Report”). The Ferguson Report is a valuable teaching tool for criminal procedure because it documents detailed cases of police misconduct. But it also reveals how many deeply intrusive and over-reaching policing practices are not, in fact, unconstitutional. Reading the Report offers a window into how the law can enable misconduct, and it reveals how little opportunity the community affected had to create change.

The Art Belongs To The Artists, Deborah M. Weissman, Louis A. Pérez

Faculty Publications

This Article examines the rights of detainees interned at the Guantánamo Bay Naval Station to claim ownership of cultural work produced during their imprisonment. Through a series of arbitrary policies, the U.S. government alternately punished detainees for creating works of art, confiscated paintings and drawings, and otherwise denied detainees’ rights to control their creative works. This Article suggests the need to understand these policies as acts akin to plunder—that is, as a practice long associated with colonialism as a means through which the artifacts of the material culture of conquered peoples were expropriated and claimed as “trophies” of conquest. It …

More Information Or More Frequent Information? A Proposal For Quarterly 1099s, Kathleen Delaney Thomas

Faculty Publications

Third-party information reporting enhances tax compliance. When substantial information reporting is present, the compliance rate reaches 94 percent, compared to just 45 percent when there is little or no information reporting. Accordingly, policymakers have expanded information reporting requirements over the past several decades to enhance revenue collection. More recently, Congress has expanded information reporting requirements for third-party settlement organizations (“TPSOs”) by significantly lowering the reporting threshold from $20,000 to $600 as well as eliminating the requirement for 200 or more transactions. While such a shift will subject more taxpayers to information reporting, it will also create additional burden on the …

Suspending The Truancy Paradigm, Barbara A. Fedders, Lucy Carlson, Max Parker

Faculty Publications

In the aftermath of the COVID-19 pandemic, school absences have skyrocketed. While racially minoritized, disabled, and low-income students have historically been, and remain, most likely to experience absence, white and affluent students’ rates of attendance have also declined. To respond to this new universality of student absenteeism, some policymakers have begun to seek alternatives to what we term “the truancy paradigm.”

We define the truancy paradigm as the range of coercive and often punitive interventions deployed by states and school districts to enforce compulsory attendance statutes. This paradigm, we argue, wrongly assumes (a) that strict enforcement of compulsory attendance laws …

Pierce, Don't Say Gay Laws, And The Rise Of Illiberal Authoritarianism, Maxine Eichner

Faculty Publications

In the last four years, legislators and policymakers in red states have passed a wave of measures directed at reforming public schools’ policies and curricula. Some of these measures deal with issues of sexual orientation and gender identity. Others restrict educators’ ability to teach issues of race. Still other initiatives seek to insert Christianity into the schools. While a number of these reforms have been passed under the label of “parental-rights laws,” these measures actually do little to foster the autonomy of parents to direct their children’s upbringing. Instead, they are muscular attempts by state governments, themselves, to impose their …

Avoiding Spacex's Giant Leap Backwards For Mankind: Why The Nlrb Leadership Is Constitutionally Protected And How To Keep It That Way, Clara Goldrich

Brooklyn Law Review

Companies like SpaceX and Amazon are arguing in federal court that the structure of the National Labor Relations Board (NLRB) unconstitutionally protects its Members and administrative law judges (ALJs) from presidential removal. President Donald Trump’s firing of Member Gwynne Wilcox, the ensuing litigation, and the Supreme Court’s grant of certiorari in an analogous case, Trump v. Slaughter, has kicked the constitutional question of NLRB leadership removal protections into high gear. This Note examines the constitutionality of NLRB Member and ALJ removal protections. Under current Supreme Court precedent, NLRB Member removal protections are likely constitutional. However, the Court has recently signaled …

Artificial Intellectual Property, Daniel J. Gervais

Vanderbilt Law School Faculty Publications

The year is 2031. You just got up. Your smartwatch has registered the movement, and the coffee maker is on. After your shower, you pick up your phone or read the latest news on the New York Times app on your VR goggles or palm. Except for a few remaining columnists, the news is all written by AI machines. At work, you are responsible for a report on a new product for your company, and you use Al to design the product and prepare the pitch, including the visuals and text of your presentation to the C-suite. The Al system …

Chancery Court Rejects Argument That Corwin Is Inapplicable To Post-Signing Board, Robert S. Reder, Jonathan Rose

Vanderbilt Law School Faculty Publications

No abstract provided.

Delaware Supreme Court Rules That Officer Exculpation Amendments Do Not Require Separate Class Vote Of Non-Voting Shares, Robert S. Reder, Ricky Bayon-Barrera

Vanderbilt Law School Faculty Publications

Before 2022, Section 102(b)(7) of the Delaware General Corporation Law (the "DGCL") permitted corporations, via amendments to their corporate charters, to exculpate corporate directors from personal liability for breaches of their duty of care ("& 102(b)(7)"). Delaware amended & 102(b)(7) in 2022 to allow corporations to extend exculpation to officers (the "2022 Amendment").

Carceral Firms In Disguise: Prison Labor, Human Rights, And The Public-Private Divide, Mao-Hong Lin

Emory International Law Review

The prohibition of forced labor is a globally recognized principle. International laws such as the International Covenant on Civil and Political Rights, the European Convention on Human Rights, and the American Convention on Human Rights explicitly ban all forms of slavery, including forced labor, with an exception for forced labor behind bars. Further, ILO asserts that forced prison labor must be conducted solely under the control of public authorities, explicitly excluding private entities from involvement. ILO’s prohibition against private use of prison labor is based on two main concerns: abuse of power over inmates and unfair competition between inmates and …

Frandship Ended With Anti-Suit Injunctions? U.S. And European Responses To Chinese Anti-Suit Injunctions In Standard-Essential Patent Litigation, Richard Li

Emory International Law Review

No abstract provided.

Josef Bohatec: The First Historian Of The Calvinist Reformation Of Rights, John Witte Jr., Thomas Jared Farmer

Emory International Law Review

This Article analyzes the pioneering work of the first great historian of Calvinist rights talk, Josef Bohatec (1876–1954), a Moravian-born and Vienna-based church historian. Bohatec built on the earlier efforts of several German scholars who were excavating pre-Enlightenment sources of human rights going back to antiquity. But Bohatec placed strong new emphasis on the original rights contributions of sixteenth-century Protestant reformer John Calvin (1509-1564) and his followers. Bohatec showed how Calvin’s legal training shaped the many new statutes and rights ordinances that he crafted for Geneva. He also showed how Calvin’s theological training shaped his highly innovative Protestant legal and …

The Erie Scoop, Barry Cushman

Journal Articles

APRIL 25, 1938 WAS A BUSY DAY at the Supreme Court of the United States. The Court decided twelve cases by full opinion and six cases per curiam, granted certiorari in two cases and denied it in twenty-eight others, and denied two petitions for rehearing. The decision that received the most attention sustained a challenge to a directive of Secretary of Agriculture Henry A. Wallace setting maximum rates to be charged by commission men working at the Kansas City Stockyards. The Court found that the regulated parties had not been afforded a “full,” “fair and open hearing” before the rate …

Exploring The Dynamics And Outcomes Of Family Engagement In Child Welfare Services: A Structural Equation Modeling Approach, Jianchao Lai, Michelle Graef, Todd Franke

Center on Children, Families, and the Law: Faculty Publications

Background: Engaging families effectively in child welfare services remains a persistent challenge, shaped by complex interactions between agency practices and family circumstances. While existing research has explored this issue, it has predominantly relied on data from agency and caseworker perspectives, often overlooking the crucial viewpoint of the families. Objectives: This study investigates families’ subjective experiences and perceptions within the child welfare system, focusing on their satisfaction with child welfare workers and overall engagement. Methods: The study draws on data collected through an evaluation of the implementation of Alternative Response in a Midwestern state. Agency administrative data is integrated with additional …

The Historic Superfund Listing Of The Lukachukai Mountains Mining District, Nadine Padilla

Faculty Scholarship

President Biden’s 2021 Bipartisan Infrastructure Law included, among its many provisions, a historic investment of $3.5 billion to be allocated toward cleanups under the Comprehensive Environmental Response, Compensation, and Liability Act (CERCLA), also known as Superfund. This investment will help in addressing the problem of legacy pollution that impacts communities across the country. Approximately $1 billion will go towards clearing the backlog of 49 previously unfunded Superfund sites and will accelerate cleanup at over 85 current Superfund sites. Remaining funds will go towards launching cleanup efforts at 25 new Superfund sites. In a development that aligns with these broader cleanup …

Undercover Investigations, Deception, And Democracy, Helen Norton

Publications

No abstract provided.

How The Antidiscrimination Law Of Commercial Transactions Really Works, Helen Norton

Publications

No abstract provided.

Tribal Health Self-Determination: The Role Of Tribal Health Systems In Actualizing The Highest Attainable Standard Of Health For American Indians And Alaska Natives, Vanessa Ann Racehorse

Publications

In this Article, I explore the concept of Tribal self-determination in the context of systems that serve American Indian and Alaska Native communities. I investigate the vast health disparities that exist in Tribal communities, as well as the history and current legal framework for the provision of health care in Indian Country. Part of this discussion also provides information on the federal laws and policies that have fractured the traditional lifeways of Native communities and contributed to the disparate health outcomes that now exist. I also provide background on the fundamental federal laws and policies, particularly the Indian Self-Determination and …

From Gods To Google, Rebecca Aviel, Margot Kaminski, Toni M. Massaro, Andrew Keane Woods

Publications

The First Amendment has become a significant barrier to sensible technology regulation. The conventional explanation for this is the Court's deregulatory turn in free-speech law. But the Lochnerization story is incomplete. The Court's profound solicitude for religious speakers plays a central role in the current digital-free-expression landscape. By protecting the speech of certain religious dissidents, the Court has created a set of constitutional entitlements that logically extend to technology firms. Along the way, the Court has eroded its ability to apply the First Amendment sensibly to novel technologies.

This Feature draws the doctrinal through line from gods to Google. We …