Law Commons^™

Against The Chenery Ii "Doctrine", Gary S. Lawson, Joseph Postell

Notre Dame Law Review

The Supreme Court’s 1947 decision in SEC v. Chenery Corp. ( Chenery II) is generally taken as blanket authorization for agencies to make law through either adju-dication or rulemaking if their organic statutes permit both modes. We think this is an overreading of the doctrine. The decision in Chenery II need not be read so broadly, and there are good reasons to read it more narrowly. The most important reason is that agency lawmaking through adjudication presents serious constitutional concerns involving due process of law and subdelegation of legislative power, at least if the agency action deprives people of life, …

Harmful Precautions, Ronen Perry

Notre Dame Law Review

According to the conventional definition of reasonableness, commonly known as the Hand formula, a person acts unreasonably (hence negligently) toward another if they fail to take precautions whose cost for the actor is lower than the expected loss for the other that these precautions can prevent.1 While law-and-economics theorists have advocated and courts have often embraced adjustments to both sides of this algebraic formulation,2 the idea that the expected loss must be compared with the cost of precautions for the potential injurer has remained mostly uncontested.3 This Article unveils an overlooked yet fundamental flaw in the orthodox understanding and application …

Reversing Incorporation, Ilan Wurman

Notre Dame Law Review

It is originalist gospel that the Fourteenth Amendment’s Privileges or Immunities Clause was intended, at a minimum, to incorporate the Bill of Rights against the states. This Article revisits forty years of scholarship and concludes that this modern consensus is likely mistaken. Reconstructing antebellum discourse on fundamental rights reveals that the historical players assumed that every state must, as all free governments had to, guarantee and secure natural rights to their citizens. But that did not mean the states regulated these rights in the same way, nor did that dictate what the federal government’s role would be in guaranteeing and …

Disfavoring Statutory Parentheses (Except In Certain Circumstances), Zachary A. Damir

Notre Dame Law Review

Parentheses in statutes have been at issue in an increasing number of court cases, even at the Supreme Court. Parentheses have a slightly different story from other punctuation marks and they have been used consistently throughout legal history. The Federal Constitution, early statutes, and a large part of our modern state and federal law separate words from their sentences using parentheses. But if a parenthetical conflicts with the material outside of the parentheses, it is the current practice to discard the interior text as surplus-age, even though the legislature may have had a reason to include that text in a …

The "Nonministerial" Exception, Athanasius G. Sirilla

Notre Dame Law Review

In 2014, Charlotte Catholic High School declined to continue Lonnie Billard’s employment as a substitute drama teacher after he publicly announced, via Facebook, that he and his same-sex partner were getting civilly married. Billard sued the school in the Western District of North Carolina for unlawful employment discrimination under Title VII of the Civil Rights Act due to his sexual orientation. The district court granted summary judgment in favor of Billard. The court first held that the high school’s actions could constitute unlawful sex discrimination in light of the Supreme Court’s ruling in Bostock v. Clayton County. The district court …

The Urgent Issue Of Suicide In Nyc Jails, Kathleen Leuty

Cardozo Journal of Equal Rights and Social Justice (ERSJ) Blog

Half of the people currently detained in New York City jails have a mental health diagnosis. Since 2020, the number of incarcerated people with a serious mental illness in New York City jails has nearly doubled—from 672 to 1,207 people. The medical support offered to those in jail suffering from mental illness, however, has not seen corresponding growth. The number of medical appointments missed by those incarcerated in New York City is staggering: “the monthly number of missed medical visits has spiked by 21%, from 9,259 in August 2022 to 11,176 in June 2023, outpacing growth in the jail population.” …

Clemency: A Tool For Extreme And Discriminatory Sentences, Benjamin N. Cardozo School Of Law

Cardozo News 2023

This article appeared in the 2023 edition of Cardozo Life magazine.

For Joaquin Winfield, April 7, 2023, will forever be a day to remember. That is when he was granted clemency by New York Gov. Kathy Hochul after serving 26 years in prison for possession of 4.6 ounces of crack. The disparity in sentences given to people from different races for similar crimes has been widely written about in recent years. Winfield was sentenced under the now-repealed Rockefeller Drug Laws of the 1970s and 1980s. He was sentenced to 37.5 years to life, one of the longest prison sentences in …

Perlmutter Center For Legal Justice Wins Clemency Appeal For Its First Client, Perlmutter Center For Legal Justice At Cardozo Law

Cardozo News 2023

This article appeared in the 2023 edition of Cardozo Life magazine.

Just two days after his release from decades in prison, Bruce Bryan visited Cardozo students to thank them for their efforts in aiding his clemency case.

A $53m Settlement That Will Improve Conditions In Ny Prisons And Jails, Alexander A. Reinert

Cardozo News 2023

This article appeared in the 2023 edition of Cardozo Life magazine.

Professor Alexander Reinert has seen his work bring about major changes in prison and jail conditions in New York City and New York State many times. In April 2023, he was co-counsel with lawyers of Cuti Hecker Wang LLP in a historic settlement in Miller v. City of New York, which involved detainees held in restrictive isolation at two jails on Rikers Island and one unit at what was then the Manhattan Detention Complex.

Civil Rights Clinic Wins Historic Louisiana Case Ending Solitary Confinement Of Individuals Awaiting Death Sentences, Betsy Ginsberg, Cardozo Civil Rights Clinic

Cardozo News 2023

This article appeared in the 2023 edition of Cardozo Life magazine.

Should an incarcerated person who has been sentenced to death be required to live out the rest of his or her life in solitary confinement? Not according to the Cardozo Civil Rights Clinic, which recently won a historic settlement changing policy in Louisiana prisons.

Brief Of Fourth Amendment Scholars As Amici Curiae In Support Of Defendant-Appellant On The Good Faith Exception Issue, U.S. V. Holcomb, Ninth Circuit Court Of Appeals Docket No. 23-469, David B. Owens, Rachel Nowlin-Sohl, Averill L. Aubrey, Megan Haygood, Kayleigh Mcniel, Michael C. Orehek

Court Briefs

SUMMARY OF THE ARGUMENT

When the Fourth Amendment is violated by an unconstitutional search, the suppression of wrongfully obtained evidence (the exclusionary rule) is often the only viable remedy that might deter government overreach and provide some redress for the constitutional violation. Though the Supreme Court has long treated remedial mechanisms as separate from their underlying rights, Wolf v. Colorado, 338 U.S. 25 (1949), and while limited exceptions to the suppression requirement have existed for years, recent expansion of the “good faith exception” in the digital age imposes unprecedented threats to privacy and security.

A porous or expansive view …

The State Of Utah, Plaintiff/Appellee V. Kenneth Bowdrey, Defendant/ Appellant. : Reply Brief, Utah Court Of Appeals

Utah Court of Appeals Briefs (2020 –)

Appeal from judgment of conviction of distribution of or arranging to distribute a controlled substance, a second-degree felony, in the Third District Court, Salt Lake County, Utah, the Honorable Todd M. Shaughnessy and,the Honorable Heather Brereton presiding.

HWA SUNG DOUCETTE, SEAN D. REYES, Attorney for Plaintiff/ Appellee

JANET LAWRENCE, JON SHUMAN, Attorneys for Defendant/ Appellant

England Logistics, Inc., England Carrier Services, Llc, And C.R England, Inc., Plaintiffs / Appellees V. Kelle's Transport Service, Llc, Tim Zack, Chris Nielsen, Casey Brown, Caleb Kuhn, Ryan Butler, Austin Butler, Joseph Charlton, Jim Quinn, Cody Isaacson, Raun Singleton, And Marc Kramer, Defendants / Appellants : Reply Brief, Utah Court Of Appeals

Utah Court of Appeals Briefs (2020 –)

On appeal from the Third Judicial District Court, Salt Lake County, Honorable Mark Kouris, District Court No. 180909680

Jeffery S. Williams, NELSON CHRISTENSEN, Walter A. Romney, Jr., Shannon K. Zollinger, Justin R. Olsen, Attorneys for Appellees

Troy L. Booher, Caroline A. Olsen, Lincoln W. Hobbs, Attorney for Appellants

Fairness And Fair Use In Generative Ai, Matthew Sag

Joint PIJIP/TLS Research Paper Series

No abstract provided.

Reply Brief For Petitioner, Ferguson V. America, Brian Wolfman, Madeline H. Meth

Faculty Scholarship

The Government concedes that the circuits are divided over whether 28 U.S.C. § 2255 limits a district court’s discretion in reviewing 18 U.S.C. § 3582(c)(1)(A) motions. And because it cannot dispute that this issue is cleanly presented, unaffected by the Sentencing Commission’s policy statement, and exceptionally important, it instead rewrites the question presented. The Government’s effort to replace a question about the relationship (if any) between Section 3582(c)(1)(A) and Section 2255 with one about whether the district court abused its discretion should be rejected, and with it the Government’s attempt to gloss over the intractable circuit split, its misguided argument …

The State Of Utah, Plaintiff/Appellee V. Kenneth Bowdrey, Defendant/ Appellant. : Reply Brief, Utah Court Of Appeals

Utah Court of Appeals Briefs (2020 –)

Appeal from judgment of conviction of distribution of or atranging to distribute a controlled substance, a second-degree felony, in the Third District Court, Salt Lake County, Utah, the Honorable Todd M. Shaughnessy andthe Honorable Heather Brereton presiding.

HWA SUNG DOUCETTE, SEAN D. REYES, Attorney for Plaintiff/ Appellee

JANET LAWRENCE, JON SHUMAN, Attorneys for Defendant/Appellant

Intervenor St. Isidore Of Seville Catholic Virtual School's Brief In Response To Petitioner's Application And Petition, Michael H. Mcginley, Steven A. Engel, M. Scott Proctor, John A. Meiser, Michael R. Perri, Socorro Adams Dooley

Court Briefs

No. MA-121694
Gentner Drummond v. Oklahoma Statewide Virtual Charter School Board

From the Arguments and Authorities

The Petition fails on the merits. Nothing in the Oklahoma Constitution prohibits the State from contracting with a religious school to provide new educational opportunities. And any state law purporting to do so would violate ORFA and the First Amendment.

All Grown Up: Qualified Immunity, Student Rights, And The Way Forward, Matthew Mcknight, Angela Guo

Duke Law Journal Online

No abstract provided.

Week Of November 20, 2023 - November 24, 2023, Benjamin N. Cardozo School Of Law

Today at Cardozo 2023

No abstract provided.

State Of Utah, Plaintiff/Respondent V. Michael Jerry Felts, Defendant/Petitioner : Brief Of Appellant, Utah Supreme Court

Utah Supreme Court Briefs (2021– )

Certiorari review of this case arises from a court of appeals’ decision affirming the district court's ruling that it could not review a restitution award from the Board of Pardons and Parole following Felts’ guilty plea for aggravated assault on a police officer, a third-degree felony, and failure to stop at the command of a police officer, a third-degree felony, in the Third Judicial District Court, in and for Salt Lake County, State of Utah, the Honorable L. Douglas Hogan, presiding.

EMILY SOPP (17599) Assistant Solicitor General SEAN D. REYES (7969) Utah Attorney General Attorneys for Respondent

NATHALIE S. SKIBINE …

Christianity And Economic Law, Daniel A. Crane

Book Chapters

From the first century forward, Christian thinkers and authorities have espoused many dierent views of economics, regulation, the role of the state, and economic law. Christian thought on economic regulation underwent systematic scholarly exposition during the Scholastic, Reformation, and modern eras, culminating in a wide array of perspectives on the role of markets and the government’s regulatory role. From Thomas Aquinas on just price theory to Martin Luther on cartelization and predatory pricing and Adam Smith on the nature of the market’s “invisible hand,” Christian and Christian-inuenced thinkers worked out the ethical and moral implications of contracts, usury, exchange, and …

Vol. 65, No. 13 (November 20, 2023)

Indiana Law Annotated

No abstract provided.

Mmu: 11/20/23–11/26/23, Student Bar Association

Monday Morning Update

This Week @ NDLS

Mass Times

Commons Daily Menu

General Announcements

Ups And Teamster: Setting A New Bar For Negotiations And Conflict Resolution, Angel Zheng

Cardozo Journal of Conflict Resolution (CJCR) Blog

On July 25th, 2023, the International Brotherhood of Teamsters (“Teamster”) reached a tentative agreement with United Parcel Service (“UPS”), affecting more than 340,000 UPS workers. A month later, on August 22nd, 86% of the union members voted in favor of ratifying the National Master Agreement. The negotiated agreement not only prevented one of the largest strikes in U.S. history, but also raised the bar for all workers in the labor movement. This entire conflict demonstrates the importance of negotiations and dispute resolution because negotiation was able to help avoid a major strike and negotiate a favorable contract.

This post was …

The Bharatiya Sakshya Bill, 2023: A New And Unimproved Evidence Act, Kunal Ambasta

Popular Media

The secrecy in drafting the bill to replace the Evidence Act is reminiscent of colonial legislation by committee. The lack of consultation has meant that the interpretative confusions in existing law remain unresolved.

From The Editor In Chief, Antulio J. Echevarria Ii

The US Army War College Quarterly: Parameters

Welcome to the Winter 2023–24 issue of Parameters. This issue opens with two In Focus commentaries offering observations from the Russia-Ukraine War, two forums addressing deterrence and strategic influence, and the inaugural Director’s Corner for the China Landpower Studies Center (CLSC).

Parameters Winter 2023-24 Full Issue, Usawc Press

The US Army War College Quarterly: Parameters

No abstract provided.

Introduction To The China Landpower Studies Center, Richard D. Butler

The US Army War College Quarterly: Parameters

Welcome to the Director’s Corner for the China Landpower Studies Center (CLSC). This will be a regular feature in Parameters that will discuss critical military and security issues related to China, the Chinese Communist Party (CCP), and the People’s Liberation Army (PLA). It will also highlight the Center’s research agenda and key activities. My objective in this first installment is to outline the purpose, organization, capabilities, research agenda, and expected products of the Center.

Ndls Communicator: Week Of 11.20.23, Notre Dame Law School

NDLS Communicator

The Latest News

• Notre Dame Law School establishes new Global Human Rights Clinic.
• Diane Desierto is currently representing Nobel laureate Maria Ressa in her defense against cyber libel charges at the Philippine Supreme Court.
• The Religious Liberty Clinic filed an amicus brief in the U.S. District Court for the District of Oregon case St. Timothy's Episcopal Church et al. v. City of Brookings, advocating for religious organizations’ freedom to serve the hungry.
• The Religious Liberty Clinic filed an amicus brief in the Fifth Circuit Court of Appeals, urging the court to protect a sacred site in San Antonio, Texas, that …

Brandeis Center Presents: Navigating The Israeli-Palestinian Conflict With Justin Ellis, The Louis Brandeis Center For Human Rights Under Law

2023–2024 Flyers

No abstract provided.