Law Commons^™

Occasional Originalism: How The Supreme Court Of North Carolina Discarded Centuries-Old Constitutional Law In State V. Singleton, William J. Etringer

North Carolina Law Review

No abstract provided.

Climate Change Litigation Cases In Context, Camille Cameron, Patricia Galvão Ferreira, Riley Weyman

Books

This book provides a timely and detailed analysis of key climate change cases in domestic courts across the globe, examining the procedural, evidentiary, legal, and strategic dimensions of the complex climate governance landscape. It reveals how, as the threats of climate change grow and as policy fails to respond, individuals and groups have increasingly been turning to national courts to seek relief and clarity through litigation.

Chapters:

1. The climate governance tightrope: novel strategies and the role of courts in climate change
2. Mathur v Ontario: youth-led constitutional challenge to government climate policy lights the path to future recognition of climate …

The Racial Implications For Black Claimants At The Federal Arbitration Act's Centennial, Michael Z. Green

Faculty Scholarship

On February 12, 1925, when President Calvin Coolidge signed into law an Act to make arbitration agreements "valid, irrevocable, and enforceable," no person could have expected that this new statute would ever apply to claims by Black litigants. A century later, that law, now referred to as the Federal Arbitration Act (FAA), has evolved to encompass disputes involving a broad array of claimants and processes where businesses enforce pre-dispute agreements to arbitrate. In examining whether Black claimants (businesses, consumers, and importantly, workers) may benefit from using arbitration, this Article investigates how the FAA, as enacted, never intended to address their …

Inexcuseable? Building An Artificial Intelligence Microexpert On Contract Excuse Doctrine, Mark Edwin Burge

Faculty Scholarship

This article details and advocates for a general methodology for creating a "microexpert" grounded in a user-defined set of legal sources and widelyaccessible tools for integrating generative artificial intelligence (AI) into legal analysis. The study focuses particularly on background contract excuse doctrines of impossibility, impracticability, and frustration of purpose, which are collectively a methodologically challenging area of law to rationalize due to factintensive variables that undermine their predictability. Particular challenges include assessing the foreseeability of the event that led to the contract's nonperformance, the extent of the hardship or burden on the party seeking excuse, and the purpose of the …

Tokenized Real Estate: The Law And Tech Of Digital Deeds, Christopher K. Odinet, Andrea Tosato

Faculty Scholarship

The advent of blockchain technology has generated bold claims that non-fungible tokens (NFTs) can fundamentally transform real estate. Proponents assert that digital assets can tokenize real property interests: the concept of using digital tokens to represent ownership rights in physical property. Their goal is to allow buyers and sellers to transfer real estate through simple blockchain transactions, thereby eliminating traditional intermediaries, reducing costs, and accelerating deal velocity. This Essay provides the first comprehensive legal analysis examining whether American law actually supports such a direct tokenization of real estate rights.

Our investigation reveals a stark disconnect between technological capability and legal …

Trust, Transparency, And The Fragile Promise Of Data Governance In The Era Of Modernization, Fallon Julia Cochlin, Regen Weber-Fares, Jami Crespo, William M. Sage, Cason Daniel Schmit

Faculty Scholarship

Public health data modernization in the United States has accelerated since COVID-19 exposed systemic weaknesses in fragmented data infrastructure and governance. Technical solutions have advanced, but legal and relational barriers still complicate data sharing across jurisdictions. Traditionally, interjurisdictional data sharing has relied on individually negotiated Data Use Agreements (DUAs), a process that is both resource-heavy and often opaque. To address this, the Centers for Disease Control and Prevention have proposed a Core DUA to standardize terms and reduce administrative burden. However, its success depends on trust — a fragile foundation increasingly strained by politicization, perceived lack of transparency, and controversial …

Interior Optimal Imprisonment Under Diminishing Marginal Disutility, Tim Friehe, Murat C. Mungan

Faculty Scholarship

This note revisits the important question of how fines and imprisonment should be optimally employed. In D’Antoni et al. (2022), a monotone hazard rate condition implies a corner solution for imprisonment in the observable-wealth benchmark when imprisonment disutility is linear. We show that this result is not robust to offenders facing diminishing marginal disutility of imprisonment. The optimal prison term is interior as long as the marginal disutility associated with large imprisonment terms are low and the harms from the offense are large enough to warrant imprisonment. The sentence length thus becomes a genuine policy margin rather than a boundary …

Childhood, Likelihood, And Probative Value: A Further Call For Greater Probity And Less Childism In Evidence Law, Mae C. Quinn

Faculty Scholarship

No abstract provided.

Governing The Energy Bottleneck, Hannah Jacobs Wiseman, Matthew Mchale

Faculty Scholarship

The electrical grid is falling short of its mandate to accommodate new generation—much of which happens to be “clean” zero-carbon generation—and to service load (demand). The bottleneck of grid access, which has vexed renewable energy developers, now affects industries seeking massive quantities of electricity to power single facilities— “large loads” such as data centers and other artificial intelligence operations.

Many of these highly capitalized loads seek clean energy generation; they could, in theory, fund an energy renaissance and provide scale-based benefits for all consumers. But loads that obtain service  are negatively impacting other consumers’ rates and, potentially, the reliability of …

How Ip Ends, Dave Fagundes, Aaron Perzanowski

Articles

Real and personal property may last forever, but intellectual property (IP) ends. Despite the doctrinal complexity and practical significance of the mechanisms that terminate IP rights, scholarship has scarcely focused on them, and none has analyzed these doctrines as a unified field. As a result, the discourse about the ways IP ends remains impoverished, with courts, legislatures, and commentators offering imprecise and inconsistent formulations that obscure the rationales for these doctrines. This Article offers the first comprehensive taxonomy of IP’s terminal mechanisms, providing much-needed conceptual and definitional coherence. It then reveals the underappreciated policy leverage these mechanisms can deliver and …

Solidarity, Strength, And Lessons Learned: The Repeal Of Right To Work In Michigan And Its Immediate Effects On Unions, Ella Compau

Honors Projects

This is a research paper on the immediate qualitative effects of the repeal of Right to Work laws in Michigan. It uses the UFCW Local 951 as a case study, analyzing the findings from interviews with union representatives and stewards. The literature review explains the history and effects of unions and Right to Work laws. The transition to a post-repeal workplace was reported as smoother than expected, and has resulted in the union now having much more time to build relationships with members and management, solve issues more efficiently, and invest in core values. Solidarity among workers is higher due …

Appellate Review Of Child Custody In Mississippi, 1994-2024, Eleanor Detweiler

Honors Theses

This study examines changes in child custody decision-making within the Mississippi appellate court system over a thirty-year period, with a particular focus on the role of legal custody as a separate consideration from physical custody. Using a longitudinal empirical research design, appellate court decisions from 1994, 2004, 2014, and 2024 were analyzed using Nexis Uni. Cases were identified using the search term “child custody” with emphasis on case headnotes indexed under “child custody” as the area of law. Variables including party roles, types of custody sought, reasons for appeal, and case outcomes were recorded and evaluated to identify trends over …

Agenda Control And Precedent, Thomas P. Schmidt

Faculty Scholarship

The U.S. Supreme Court now has vast control over its agenda: It has the power to pick and choose not only what cases it will hear through writs of certiorari, but also what specific legal questions within those cases it will consider. As a result, the Court never revisits a precedent unless it has made a prior, discretionary choice to put the viability of a precedent on its agenda. For that reason, the Court’s powers of agenda control play a significant and underappreciated role in maintaining the continuity of the legal order. Indeed, it is no surprise that the formal …

Thinking Constructively About International Law, Monica Hakimi

Faculty Scholarship

The international order that has defined the post-World War II period is being radically transformed, presenting a once-in-a-generation opportunity to reconstitute its basic foundations. The pressing questions for international lawyers are about the roles their enterprise can and should play going forward. I argue in this Article that most lack the analytic framework they need even to begin tackling these questions. Worse, most seem mired in an old theory about law that corrupts how they approach their enterprise. My goals in the Article are to expose the prevalence of this bad theory and to present the grounds for discarding it, …

Uncomfortably Reminiscent: Odonnell V. Harris County In History And Memory, Kellen R. Funk

Faculty Scholarship

In ODonnell v. Harris County, a federal trial court enjoined the misdemeanor bail system of Houston, Texas, freeing approximately 20,000 indigent defendants annually. To do this, the trial court drew upon Reconstruction era precedents establishing intensive federal oversight of state criminal proceedings. The court explicitly invoked the Civil War and Reconstruction transformation of the federal judiciary, comparing the County’s defenses to slavery era arguments. Conversely, when the en banc Fifth Circuit reviewed a similar order in Dallas, Texas, six years later, it rejected this historical framework, condemning such litigation as an impermissible “ongoing federal audit of state criminal proceedings.” …

Fixing Forty Years Of Failure: Objective Solutions To Batson’S Subjective Shortfalls, Katherine E. Donoghue

Cardozo Law Review

It is a sunny afternoon in rural Georgia. A young Black man goes for a jog. On his route, he crosses the train tracks and heads into a predominantly White neighborhood. As his sneakers rhythmically hit the pavement, he hears the rev of a pickup truck behind him. Shortly after, he hears a second truck. The young jogger picks up his pace, but so do the trucks. The trucks chase him and eventually surround him. Two White men get out with shotguns. One stands ready, barrel raised. The other approaches the jogger and fires a bullet into his chest.

That …

News You Need: Annual Session, Board Updates, And Regulatory News, David Foe

The Journal of the Michigan Dental Association

This comprehensive news section provides essential updates for Michigan dentists, including details on the 2026 Annual Session highlights and the launch of the "HERM-E" AI member assistant. It features critical regulatory reminders concerning mandated reporting for child abuse and neglect. The document also covers oral cancer prevention, dental therapy scholarship updates, and the appointment of new members to the Michigan Board of Dentistry. Additionally, it lists upcoming House of Delegates meetings and resources for donated treatment, ensuring members are informed on professional responsibilities.

Justice And Peace Shall Kiss: A Comparative Analysis Of Law From Ancient Israel To Modern America, Evan Nix

Honors Theses

Modern legal scholarship frequently attributes American criminal jurisprudence to Roman structures, Enlightenment rationality, and English common law, which obscures the American system’s roots in Hebraic natural-law value frameworks. The present thesis asks: “To what extent does the American criminal justice system embody core values of ancient Hebrew law, and how does such a framework compare to purely secular models regarding societal stability and equity?” A comparative analysis draws on biblical texts of the Torah, Hebrew wisdom literature, and American constitutional and statutory provisions, tracing a genealogy from covenantal laws of ancient Israel to modern American constitutionalism. Findings indicate preservation of …

An Elegy For The Hereditary Peers, Declan M. Hurley

Notre Dame JLEPP: In Limine

Declan Hurley reflects on the role of the hereditary peers, and what is lost with their demise.

Decline And Fall Of The House Of Lords, Thomas H. Schacht

Notre Dame JLEPP: In Limine

Thomas Schacht recounts the inevitable momentum of the last one hundred years, which has rendered the House of Lords impotent

A Problem For Traditionalism, Marc O. Degirolami

Notre Dame JLEPP: In Limine

Prof. DeGirolami explains traditionalism and why it might pose a problem in the United States.

The Crime We Forget? White-Collar Crime: Problems In Defining Motive And Enforcement Of Followers, John Stillman

Notre Dame JLEPP: In Limine

John Stillman explains problems in defining and enforcing against white-collar crime, focusing on followers.

Why A “Blog” For Law, Ethics & Public Policy?, Declan M. Hurley, Jack Manning

Notre Dame JLEPP: In Limine

Hurley and Manning explain why JLEPP needs a new short-form publication--JLEPP In Limine--for relevant scholarly commentary.

An Austrian Approach To Accounting Regulation: How Policy Intervention Distorts The Market For Assurance Services, Kyan Howe

Student Scholarship

This thesis applies the causal-realist method of the Austrian School of Economics to the market for assurance services in the United States. The central argument is that post-crisis accounting regulation has systematically distorted the incentive structures of independent public accounting firms in ways regulators do not predict and cannot fully control. Financial crises, properly understood through Austrian Business Cycle Theory, originate in monetary distortions rather than market failure. Post-crisis regulatory responses nonetheless target the profession rather than the underlying distortion, introducing rules that alter the institutional constraints within which auditors exercise professional judgment.

The thesis develops a judgment-based equation of …

Faculty List

Missouri Law Review

No abstract provided.

Masthead

Missouri Law Review

No abstract provided.

The Varying Strength Of Parental Rights, Mark Strasser

Missouri Law Review

The United States Supreme Court has recognized that parental rights implicate fundamental interests and that statutes adversely affecting those rights require close examination. However, the Court has been inconsistent in both its analysis and results when deciding which statutes burdening parental rights nonetheless pass constitutional muster. The Court’s ambivalence and lack of clarity have made parental rights jurisprudence confused and confusing, as illustrated by the dissensus among the state supreme courts regarding which visitation statutes are constitutional. Yet, this jurisprudential quagmire cannot be blamed on one particular decision, as if a single clarification or modification could resolve the problem. Rather, …

Deliberate Indifference Reimagined: Towards An Objective Standard For Eighth Amendment Prison Condition Violations, Lane Hines Woodke

Missouri Law Review

This Article critiques the existing standard for establishing deliberate indifference under the Eighth Amendment, which primarily relies on the subjective intent of correctional officials. It argues for a shift towards an objective standard that assesses the reasonableness of state responses to known risks, particularly in light of persistent unconstitutional conditions within correctional facilities, such as inadequate living conditions and unchecked violence. The Article contends that the current subjective approach creates an insurmountable evidentiary burden for incarcerated individuals and fails to ensure meaningful compliance with constitutional protections. By advocating for an objective framework akin to standards used in Fourth and Fourteenth …

The Politics Of Preservation: Federal Implications Of The Smithsonian Executive Order, Autumn H. Duncan

Missouri Law Review

When society thinks of the phrase “revisionist history,” George Orwell’s harrowing words likely come to mind. The term itself is used in the political realm as “an accusation of deliberately distorting irrefutable historical ‘facts’ to serve a particular political agenda or viewpoint.” Although the topic of revisionism is a hot-button issue among historians and non-historians alike, Americans are divided over how to approach history. About 47% of the population believes that history should question the nation’s past, while 53% contend that history should celebrate it. This divide becomes even more evident when broken down by party lines: 84% of Republicans …

Product Liability In The Digital Age: A Flexible Framework For Categorizing Technology After Ameer V. Lyft, Andrew Jensen

Missouri Law Review

A single line of code can now cause a car crash, deny a loan, or—as in the case of Ameer v. Lyft—contribute to a man’s death. Traditional product liability law, born in the era of smokestacks and assembly lines, still assumes that only tangible things can be defective products. When software replaces machinery and algorithms make life-or-death decisions, courts face a question: can code itself be a defective product? The answer matters enormously. If courts decline to treat mass-marketed applications as “products,” victims of dangerous software may be left without recourse. On the other hand, if they expand liability too …