Law Commons^™

A Non-Categorical Approach To Free Exercise Rights, Elizabeth A. Clark

Notre Dame Law Review Reflection

The unconstitutional conditions doctrine, which holds that “the government may not deny a benefit to a person because [that person] exercises a constitutional right,” has been applied inconsistently to matters within the Free Exercise Clause and without, including entitlements to unemployment benefits, licenses to proselyte, educational benefits, and the right to run for public office.

In this Essay, I use the way the Supreme Court has applied the unconstitutional conditions doctrine and other anomalous cases, history, and comparative law to reconstruct a more nuanced Free Exercise regime, one that in many ways more closely parallels U.S. protections for speech and …

A Textualist Defense Of A New Collateral Order Doctrine, Adam Reed Moore

Notre Dame Law Review Reflection

As a general rule, federal appellate courts have jurisdiction over “final decisions.” Though the rule seems simple enough, the Court’s current approach to interpreting “final decisions,” the collateral order doctrine, is anything but straight­forward. That is because the Court has left the statutory text by the wayside. The collateral order doctrine is divorced from statutory text and is instead based on policy considerations.

Commentators (and, at times, the Court) have offered an alternative reading of “final decisions”: the final-judgment rule. This rule would allow appeals from final judgments only. But this alternative is not the product of close textual analysis. …

Economic Extraterritorial Regulation Amongst The American States, Michael Mischley

School of Professional Studies

By analyzing historical and contemporary examples, this study demonstrates the reality of extraterritorial regulation and how concepts of federalism and political representation shape legal precedents that allow this practice to occur. Second, using a case study focused on the State of California, the State of Texas, and the State of New York, this study looked for pending or promulgated legislation with extraterritorial effect outside of environmental regulation and where the Congress preempts state law.

Conclusively, the practice of economically-powerful American states regulating extraterritorially exists in other policy areas and occurs as a means of national influence outside of federal channels. …

An Originalist Approach To Prospective Overruling, John O. Mcginnis, Michael Rappaport

Notre Dame Law Review

Originalism has become a dominant jurisprudential theory on the Supreme Court. But a large number of precedents are inconsistent with the Constitution’s original meaning and overturning them risks creating enormous disruption to the legal order. This article defends a prospective overruling approach that would harmonize precedent with originalism’s rise and reduce the disruption from overrulings. Under prospective overruling, the Court declares that an existing statute violates the original meaning but will continue to be enforced because declaring it unconstitutional would produce enormous costs; however, future statutes of this type will be voided as unconstitutional. Under our approach, the Court would …

Presidential Power And What The First Congress Did Not Do, Michael D. Ramsey

Notre Dame Law Review Reflection

Scholars, advocates, and judges have long debated the scope of the President’s “executive Power” under Article II, Section 1, of the Constitution. New articles by, among others, Professors Jean Galbraith, Julian Mortenson, Jed Shugerman, and Ilan Wurman have sharply rekindled those contentions, particularly with regard to the President’s power to remove executive officers and to conduct the foreign affairs of the United States. This Essay takes a close look at one piece of the executive power puzzle: what the First Congress did and did not do in 1789 regarding the powers of the President. Unlike prior accounts, which have devoted …

Ethical Implications Of Ai-Based Algorithms In Recruiting Processes: A Study Of Civil Rights Violations Under Title Vii And The Americans With Disabilities Act, Vanessa Rodriguez

Cyber Operations and Resilience Program Graduate Projects

This research paper analyzes the ethical implications of utilizing artificial intelligence, specifically AI-based algorithms in business selection and recruiting processes, with a focus on potential violations under Title VII of the Civil Rights Act of 1964 and Title 1 of the Americans with Disabilities Act (ADA). Amazon’s attempt at launching AI recruiting tools is examined. This paper will assess the fairness of AI recruiting practices, considering data collection, potential biases, and accuracy concerns in its implementation process. Additionally, the paper will provide an overview of federal civil rights statutes enforced by the U.S. Equal Employment Opportunity Commission (EEOC) and recent …

The Conferred Jurisdiction Of The International Criminal Court, Leila Nadya Sadat

Notre Dame Law Review

After twenty years of operation, we know that the International Criminal Court (ICC) works in practice. But does it work in theory? A debate rages regarding the proper conceptualization of the Court’s jurisdiction. Some have argued that the ICC’s jurisdiction is little more than a delegation by states of a subset of their own criminal jurisdiction. They contend that when states ratify the Rome Statute, they transfer some of their own prescriptive or adjudicative criminal jurisdiction to the Court, meaning that the Court cannot do more than the state itself could have done. Moreover, they argue that these constraints are …

Midstream Contract Interpretation, Alan Schwartz, Simone M. Sepe

Notre Dame Law Review

This Article makes two original contributions to the contract interpretation and renegotiation literatures. First, we introduce an underexplored cause of renegotiation failure: party uncertainty regarding the type of court that will interpret their contract. Parties may predict differently how the applicable court will weigh facts, apply legal rules, or interpret contracts. When parties disagree regarding the court’s interpretive practices, they will assess their expected litigation payoffs differently. This could cause parties to litigate transactions rather than complete them, even when the parties agree on the economic parameters. Litigators know that differing predictions about what a court will do can impede …

Converse-Osborn: State Sovereign Immunity, Standing, And The Dog-Wagging Effect Of Article Iii, Carlos M. Vázquez

Notre Dame Law Review

“[T]he legislative, executive, and judicial powers, of every well constructed government, are co-extensive with each other . . . . [T]he judicial department may receive from the Legislature the power of construing every . . . law [which the Legislature may constitutionally make].” Chief Justice Marshall relied on this axiom in Osborn v. Bank of the United States to stress the breadth of the federal judicial power: the federal courts must have the potential power to adjudicate any claim based on any law Congress has the power to enact. In recent years, however, the axiom has sometimes operated in the …

State Officers And The Enforcement Of Federal Law, Charlie Nugent

Notre Dame Law Review

There is an unresolved question whether the state enforcement of federal law is compatible with the structure of government that the Constitution creates for the United States. Commentators have advanced two diametrically opposed positions to justify the state enforcement of federal law. The “federal delegation” position maintains that federal executive power is the only executive power that can perform federal executive functions. Proponents of this position argue that, when state officers enforce federal law, they exercise federal executive power at the pleasure of the President. This federal delegation position, however, has not been adequately defended. There is no clear reason …

Fordham Lawyer, No. 22 - Winter/Spring 2023, Fordham Law Alumni Association, Fordham Law School

Fordham Lawyer

Fordham Lawyer magazine was first published in 1988 and continued through 2004. It returned in 2011 under Dean Michael M. Martin. The magazine shines a spotlight on faculty research, the Law School community, and the accomplishments of our alumni. No issues were published between 2004 and 2011.

Did The Court In Sffa Overrule Grutter?, Bill Watson

Notre Dame Law Review Reflection

In Students for Fair Admissions, Inc. v. President and Fellows of Harvard College (SFFA), the Supreme Court held that affirmative action programs designed to comply with the precedent set in Grutter v. Bollinger were unlawful. Yet the Court nowhere said that it was overruling Grutter and, in fact, relied on Grutter as authority. Neither the Justices themselves nor subsequent commentators have been able to agree on what, if anything, remains of Grutter today. Did SFFA overrule Grutter or not? This Essay analyzes that question and its normative fallout. The Essay concludes that SFFA at least partially overruled Grutter and that …

Qualified Immunity As Gun Control, Guha Krishnamurthi, Peter N. Salib

Notre Dame Law Review Reflection

The Supreme Court’s ruling in New York State Rifle & Pistol Ass’n v. Bruen threw the political project of gun regulation into question. Before Bruen, states could enact new kinds of gun restrictions if they passed a relatively stringent means-ends test. That is, if laws meaningfully reduced danger, while not too heavily burdening the right to self-defense, they were allowed. After Bruen, only gun controls actually in force in the Founding Era, and their close analogues, are permissible. Many fewer regulations will now pass the constitutional test.

Here, we suggest an unlikely source of continuing power, after Bruen, for states …

Toward Opt‐In Consent For Pregnancy Testing, Kim D. Ricardo

UIC Law Open Access Faculty Scholarship

No abstract provided.

Assessing Evidence Of Secondary Considerations, Jason Reinecke

Villanova Law Review (1956 - )

No abstract provided.

Criminal Law, J. Scott Key

Mercer Law Review

This Article reviews some of the most important opinions impacting the practice of criminal law delivered by the Supreme Court of the United States and the Supreme Court of Georgia covering the period from June 1, 2022, up and until May 31, 2023, as well as legislation adopted by the Georgia General Assembly during the 2023 session. This Article is designed to be a general overview for both prosecutors and defense attorneys of decisions and new statutes and serves as a broad guideline to how these decisions will affect the practice of criminal law.

“Cancel Culture” And Criminal Justice, Steven Arrigg Koh

UC Law Journal

This Article explores the relationship between two normative systems in modern society: “cancel culture” and criminal justice. It argues that cancel culture—a ubiquitous phenomenon in contemporary life—may rectify deficiencies of over- and under-enforcement in the U.S. criminal justice system. However, the downsides of cancel culture’s structure—imprecise factfinding, potentially disproportionate sanctions leading to collateral consequences, a “thin” conception of the wrongdoer as beyond rehabilitation, and a broader cultural anxiety that “chills” certain human conduct—reflect problematic U.S. punitive impulses that characterize our era of mass incarceration. This Article thus argues that social media reform proposals obscure a deeper necessity: transcendence of blame …

Metaresearch, Psychology, And Law: A Case Study On Implicit Bias, Jason M. Chin, Alex O. Holcombe, Kathryn Zeiler, Patrick S. Forscher, Ann Guo

Connecticut Law Review

When can scientific findings from experimental psychology be confidently applied to legal issues? When applications have clear limits, do legal commentators readily acknowledge them? To address these questions, we survey recent findings from an emerging field of research on research (i.e., metaresearch). We find that many aspects of experimental psychology’s research and reporting practices threaten the validity and generalizability of legally relevant research findings, including those relied on by courts and policy-setting bodies. As a case study, we appraise the empirical claims relied on by commentators claiming that measures designed to estimate implicit bias are valid, that implicit bias causes …

A Parent’S Right To Obtain Puberty Blockers For Their Child, Megan Medlicott

Connecticut Law Review

Since Dobbs v. Jackson Women’s Health Organization overturned Roe v. Wade, many scholars have expressed concern over how the Dobbs decision may impact other privacy interests that previously have been recognized as protected rights under the Fourteenth Amendment’s Due Process Clause. The substantive due process right associated with a parent’s right to the care, control, and custody of their child, however, is situated differently in comparison to those rights presumably displaced by the Dobbs opinion. A parent’s right, unlike other rights recognized under the substantive due process doctrine, is objectively deeply rooted in our nation’s history and tradition, and is …

Disrupting Dominance, Cinnamon P. Carlarne, Keith H. Hirokawa

Connecticut Law Review

Climate change poses one of the greatest threats to human health and well-being. It also poses enormous challenges to the rule of law. As climate change progresses and climate impacts intensify, it becomes increasingly urgent to consider whether and how we are drawing upon the law as a tool to advance human adaptation to climate change. Equally, we must consider whether and how the evolving rule of law around climate change responds to existing patterns of social, political, and economic inequality. These are the questions this article engages.

As a starting point, this Article centers human vulnerability as a necessary …

It’S Raining Rockets: Heightening State Liability For Space Pollution, Sraavya Poonuganti

Chicago Journal of International Law

The uptick in outer space exploration activity by spacefaring nations has resulted in the increased proliferation of space debris orbiting Earth and reentering its atmosphere. The current liability regime, which was enacted as a result of the U.S.–Soviet Union space race in the 1960s and ’70s, is ill-equipped to mitigate and deter such proliferation. Without proactive measures, the space debris buildup could escalate into the Kessler Syndrome, a proposed scenario in which space exploration, and its corresponding benefits, may be rendered infeasible due to the extreme risk of high-impact space object collisions. This Comment first analyzes existing proposals for amending …

Discursive Constitutionalism, Ngoc Son Bui

Chicago Journal of International Law

“Constitutionalism” has been contentiously debated at national and international levels. This Article develops the concept of discursive constitutionalism, defined as the construction of constitutionalism through public discourse. It theorizes about four elements (ideas, actors, actions, and spaces) and the constructive logic of discursive constitutionalism. Public constitutionalist discourse can be shaped by the existing relations of political power. At the same time, it can constrain the political monopoly of constitutional thinking, shape the design of institutions to limit political power, and prevent the arbitrary use of political power in practice. This study provides an explanatory account of three models of discursive …

Comparative Analysis Of American And Chinese Letter Of Credit Law: To Mitigate Or Not To Mitigate That Is The Question, Jingen Wang, Larry A. Dimatteo

Journal of International Business and Law

Under American and Chinese law, the duty of the non-breaching party to mitigate damages is a core principle of general contract law. In the United States, an exception is found in letters of credit law where the beneficiary party has no such duty when an issuing bank (issuer) wrongfully dishonors payment under a letter of credit (LC). The beneficiary may recover the face amount dishonored plus any other losses recoverable under applicable law. The rationale for not applying the general duty of mitigation to letters of credit (LCs) is the independence principle, which asserts that the LC transaction is independent …

Masthead

UC Law SF Communications and Entertainment Journal

No abstract provided.

New Problem, Same Old Ecpa: Facebook, Inc. V. State Of New Jersey And The Electronic Communications Privacy Act’S Growing Inadequacy, Austin Fauni

UC Law SF Communications and Entertainment Journal

No abstract provided.

One Step Forward Or Two Steps Back For The Music Industry: Analyzing The Statutory And Practical Issues In Title I Of The Music Modernization Act, Gabriel Ross

UC Law SF Communications and Entertainment Journal

No abstract provided.

Adopting A Solution To Copyright’S Orphan Works Problem, Kylie Arman

UC Law SF Communications and Entertainment Journal

No abstract provided.

Hearing Officers In Competition Proceedings Conducted By The European Commission For The Implementation Of Article 101 And 102 Tfeu, Justyna Kownacka

internetowy Kwartalnik Antymonopolowy i Regulacyjny (internet Quarterly on Antitrust and Regulation)

The article analyzes the role played by the Hearing Officer in competition proceedings conducted by the European Commission to implement Article 101 and 102 TFEU. Currently, the Hearing Officer is a guarantor of the effective exercise of procedural rights in the course of all competition proceedings before the EC, while contributing to the objectivity, transparency and efficiency of the proceedings. The article also discusses the proposals to change the scope of the powers of the Hearing Officer, as reported in doctrine and literature, and refers to the possibility and legitimacy of introducing such institution into Polish competition law.

Rising Threat - Deepfakes And National Security In The Age Of Digital Deception, Dougo Kone-Sow

Cybersecurity Undergraduate Research Showcase

This paper delves into the intricate landscape of deepfakes, exploring their genesis, capabilities, and far-reaching implications. The rise of deepfake technology presents an unprecedented threat to American national security, propagating disinformation and manipulation across various media formats. Notably, deepfakes have evolved from a historical backdrop of disinformation campaigns, merging with the advancements of artificial intelligence (AI) and machine learning to craft convincing but false multimedia content.

Examining the capabilities of deepfakes reveals their potential for misuse, evidenced by instances targeting individuals, companies, and even influencing political events like the 2020 U.S. elections. The paper highlights the direct threats posed by …

Ways To Make Cybersecurity Education/Opportunities More Accessible In The Philippine Public School System, Joshua Oania

Cybersecurity Undergraduate Research Showcase

This paper will examine how the Philippines can make cybersecurity education more accessible in their public school system. The solutions it proposes include making cybersecurity a part of the school curriculum, creating summer/internship programs for Junior and Senior High School students in multiple different areas within cybersecurity, and providing basic infrastructure and resources for students to meet their educational needs and aspirations.