Law Commons^™

A Survivor's Perspective: Federal Judicial Selection From George Bush To Donald Trump, Leslie H. Southwick

Notre Dame Law Review

Over recent decades, federal judicial selection controversies are worsening in their frequency and intensity. They distort all three branches of government. My particular concern is with federal judicial selection for judgeships below the Olympian heights of those on the United States Supreme Court, namely, the judges on the twelve regional circuit courts of appeals and the ninety-four district courts.

The depth of partisan acrimony over judicial confirmations has placed us in the infernal regions, and we seem to be continuing our descent. Analyzing how we got there is invariably affected by the biases, or more gently, by the perspectives of …

Adequate And Effective: Postconviction Relief Through Section 2255 And Intervening Changes In Law, Ethan D. Beck

Notre Dame Law Review

This Note begins in Part I by providing a general introduction to modern postconviction relief, with special attention to the interaction between habeas corpus petitions and the § 2255 motion that performs much of the work traditionally assigned to the habeas writ. Section I.A begins to describe the debate in the federal circuit courts over the proper scope of the clause of § 2255 with which this Note is primarily concerned, the so-called “savings clause” of § 2255(e). Section I.B relates the importance of correctly construing the savings clause, as well as the dangers of a split in circuit interpretation …

Toward A More Apparent Approach To Considering The Admission Of Expert Testimony, Thomas D. Schroeder

Notre Dame Law Review

This Article highlights lingering confusion in the caselaw as to the proper standard for the trial court’s discharge of its gatekeeping role for the admission of expert testimony. The Article urges correction of the faulty application of Daubert’s admonition as to “shaky but admissible” evidence as a substitute for proper discharge of the trial court’s gatekeeper function under Rule 104(a). The Article concludes with several suggestions for trial and appellate courts to consider for better decisionmaking in discharging their duty to apply Rule 104(a)’s preponderance standard to the elements of Rule 702.

Only Where Justified: Toward Limits And Explanatory Requirements For Nationwide Injunctions, Milan D. Smith Jr.

Notre Dame Law Review

In Part I of this Article, I discuss the existing law and current debates surrounding nationwide injunctions. I consider the origins of both the apparent recent surge in the issuance of nationwide injunctions and the apparent recent surge in skepticism concerning nationwide injunctions. In Part II, I analyze the potential justification for issuance of a nationwide injunction that I find most compelling, and on which basis I argue a court is well within the bounds of Article III notwithstanding the indirect benefits of such injunction to nonparties. In Part III, I consider three other sometimesasserted justifications that I argue courts …

The Vra At A Crossroads: The Ability Of Section 2 To Address Discriminatory Districting On The Eve Of The 2020 Census, Ben Boris

Notre Dame Law Review

Part I of this Note begins by examining the background of the VRA. In Part I, this Note will briefly summarize the Act’s relationship with the Fifteenth Amendment and the circumstances that prompted its enactment, and detail the development of both section 2 and section 5 of the Act, as they have been used to combat vote discrimination. Part I will also discuss recent Supreme Court decisions that have limited the strength of the Act and set the stage for an analysis of the Act’s inability to combat discriminatory districting.

Part II will highlight two shortcomings of the Act to …

A Different Kind Of Prisoner's Dilemma: The Right To The Free Exercise Of Religion For Incarcerated Persons, Daniel T. Judge

Notre Dame Law Review

Part I will lay the foundation for the constitutional right to freedom of religion in the United States. It will explain how the Framers understood the right in the lead up to, and at the time of, the ratification of the Free Exercise Clause as part of the Bill of Rights. Part I will also address more modern advances in religious liberty protections for prisoners before discussing two recent milestones: the Religious Land Use and Institutionalized Persons Act and the Supreme Court’s decision in Holt v. Hobbs. Part II addresses the right to freedom of religion internationally. It begins …

"Of Substantial Religious Importance": A Case For A Deferential Approach To The Ministerial Exception, Allison H. Pope

Notre Dame Law Review

This Note argues that, in order to remain consistent with the Religion Clauses’ protection of religious autonomy, civil courts must defer to the religious group’s determination of which of its employees play a role “of substantial religious importance” within the organization in carrying out its religious mission under its tenets, and are therefore “ministers,” rather than investigate and make that determination themselves. Part I provides background information on the First Amendment and an overview of the circuit court and Supreme Court decisions that laid the foundation for, built, adopted, and applied the ministerial exception as described in Hosanna-Tabor. Part …

Civil Procedure Update 2020: New Mexico Annual Judicial Conclave, Verónica C. Gonzales-Zamora, George Bach

Faculty Scholarship

These materials are part of a presentation on civil procedure given to magistrate, district, appellate, and tribal court judges, justices, and staff attorneys in New Mexico courts. These materials include the language of approved and proposed amendments to the state and federal rules of civil procedure as well as summaries of relevant appellate cases issued by the New Mexico Supreme Court and Court of Appeals, the Supreme Court of the United States, and the Supreme Court of the Navajo Nation between May 1, 2019 to May 1, 2020.

• Amendments to the New Mexico Rules of Civil Procedure include NMRA Rule …

Judicial Review And Governmental Bad Faith, John M. Greabe

Law Faculty Scholarship

[Excerpt] This column is the third and final installment of a series considering some potential implications of June Medical Services v. Russo, a case involving a constitutional challenge to a Louisiana law regulating access to abortion services. The United States Supreme Court heard arguments in the case on March 4. A decision is expected shortly.

The first column sought to place June Medical Services in context by describing the history of constitutional abortion-rights litigation at the Supreme Court. The second explained what the case is likely to tell us about the respect the court will show to prior constitutional …

Predicting Administrative Patent Challenges, Talia Bar, Brendan Costello

Minnesota Journal of Law, Science & Technology

No abstract provided.

The Enduring Challenges For Habeas Corpus, Diane P. Wood

Notre Dame Law Review

Habeas corpus law has not remained static during the half century since Judge Friendly wrote, but neither has it provided satisfactory answers to the problems that he highlighted in his article. Unfortunately, many of the changes—well intended as they were by the enactors and implementers— have done nothing but create endless hurdles, loops, and traps for potential users. Enormous resources are poured into this elusive remedy. The rule of law is not well served when people are told that they have a remedy, but in fact they do not. Far better to have truth-in-labeling, so that the cases that deserve …

Not Gill-Ty: Challenging And Providing A Workable Alternative To The Supreme Court's Gerrymandering Standing Analysis In Gill V. Whitford, Colin Neal

William & Mary Bill of Rights Journal

No abstract provided.

Information Gathering Or Speech Creation: How To Think About A First Amendment Right To Record, Jared Mullen

William & Mary Bill of Rights Journal

No abstract provided.

Understanding The Spirit Of The Constitution On Corruption: Emoluments, Impeachment, And The Primacy Of Political Virtue, Lea Mano

William & Mary Bill of Rights Journal

No abstract provided.

Arbitrary Arbiters: Evaluating The Right To Be Informed Of Eligibility For Discretionary Relief In Removal Proceedings, Michael Jordan

William & Mary Bill of Rights Journal

No abstract provided.

Saving The Marketplace From Market Failure: Reorienting Marketplace Theory In The Era Of Ai Communicators, Jared Schroeder

William & Mary Bill of Rights Journal

Artificially Intelligent (AI) communicators represent a new type of actor within public discourse. These entities have played influential roles in recent elections in the U.S. and Europe. This Article examines expression rights for AI actors through the lenses provided by the foundational assumptions of the marketplace of ideas theory and existing free-expression-related rationales regarding non-human actors in the U.S. and European legal systems. The Article contends that the fundamental assumptions of the marketplace model must be revised to focus on the flow of information, the development of truth, rather than the more Enlightenment-oriented competition of ideas that leads to the …

Kidnapping Reconsidered: Courts Merger Tests Inadequately Remedy The Inequities Which Developed From Kidnapping's Sensationalized And Racialized History, Samuel P. Newton

William & Mary Bill of Rights Journal

No abstract provided.

Steps Toward Abolishing Capital Punishment: Incrementalism In The American Death Penalty, Melanie Kalmanson

William & Mary Bill of Rights Journal

While scholars seem united on the sentiment that abolition is the ultimate resting place for capital sentencing in the United States, their arguments vary as to how the system will reach that point. For example, Carol and Jordan Steiker argue that the systemic disarray of capital sentencing in the United States is a result of the U.S. Supreme Court’s attempt to constitutionalize capital sentencing. This Article contends that the U.S. Supreme Court’s constitutional jurisprudence that has developed since 1972, when the Court reset capital sentencing in Furman v. Georgia, has aided the Court in gradually narrowing capital punishment, as a …

The Bad News Of Good News Club: Obliterating The Wall Between Church & State, Kevin W. Connell

William & Mary Bill of Rights Journal

No abstract provided.

Online Self-Grading Assessments For Legal Research And Writing Courses, Eric P. Voigt

William & Mary Law School’s Conference for Excellence in Online Teaching Legal Research & Writing

Do you want to provide more formative assessment measures to students without overburdening your workload? Do you want to maximize your students' long-term retention of course material? If yes, then check out this chart "presentation." This chart identifies free and subscription-based resources covering legal research and writing topics. This chart discusses many on line resources with pre-built exercises and quizzes that provide instant feedback and explanations to students.

The Supreme Court Rules That Trump’S Daca Rescission Doesn’T Pass Muster, Peter Margulies

Law Faculty Scholarship

No abstract provided.

Cardozo Law News Brief: June 18, 2020, Benjamin N. Cardozo School Of Law

Cardozo Law News Brief 2020

Featured Faculty:

• Gabor Rona
• Edward Zelinsky
• Alexander A. Reinert
• Kate Levine

Campus News:

• Virtual Inspire! Awards Ceremony Honors Three Activist Women Who Have Campaigned for Justice
• CLIHHR's Law Teaching Guides: Trademark Law and the Aunt Jemima Brand

Events:

• Seinfeld and the Law
• 51 Imperfect Solutions: Book Talk with Judge Jeffrey Sutton, U.S. Court of Appeals for the Sixth Circuit
• Tiger King: Through the Lens of Family Law and Sexuality and the Law 
• COVID and Detention Issues 
• Supreme Court Summer Cases Wrap-up
• A Google Maps Trip Through NYC Zoning Issues

Mediate.Com Publishes “Seven Keys To Unlock Mediation’S Golden Age”, John Lande

Faculty Blogs

Mediate.com published a series entitled Seven Keys to Unlock Mediation’s Golden Age. The objective is to encourage discussion among stakeholders about navigating mediation’s best future. The seven keys are: Leadership, Data, Education, Profession, Technology, Government and Usage. Descriptions of each “key” has two to four short articles.

Good Initiative, Bad Judgement: The Unintended Consequences Of Title Ix's Proportionality Standard On Ncaa Men's Gymnastics And The Transgender Athlete, Jeffrey Shearer

Pace Intellectual Property, Sports & Entertainment Law Forum

Title IX fails to provide the tools or guidelines necessary to equalize opportunities for all student athletes in the collegiate setting despite the government’s continuous effort to explain the law. This failure is because judicial precedent has largely developed around the binary proportionality test of compliance. Title IX was originally intended to equalize educational opportunities for male and female students in order to remedy past discrimination in our society. However, the application of Title IX has frequently created fewer opportunities in athletics due to the unintended relationship between the proportionality standard and the social phenomenon that is the commercialization of …

America's Newest Boogeyman For Deviant Teen Behavior: Violent Video Games And The First Amendment, Joseph C. Alfe, Grant D. Talabay

Pace Intellectual Property, Sports & Entertainment Law Forum

Are violent video games harming America’s youth? Is it possible a series of interconnected circuit boards can influence children (or even adults) to become, themselves, violent? If so, how should our society-- and government-- respond?

To properly answer this last query, violent video games must be viewed through the lens of the First Amendment. Simply put: do games depicting grotesque acts of depravity so profound as to negatively influence the psyche warrant the full constitutional protections ordinarily guaranteed under the mantle of free speech and expression? Are these guarantees without limit? If not, how far may the government go in …

The Problem Of Modern Monetization Of Memes: How Copyright Law Can Give Protection To Meme Creators, Mark Marciszewski

Pace Intellectual Property, Sports & Entertainment Law Forum

Some legal questions answered in this article on the horizon for the courts and lawyers is how should courts apply copyright law to popular media made by small scale creators and shared on the internet, otherwise known as "memes."

Part II of this article will focus on validity of potential copyright protection in internet memes. It will start by describing the increased monetization surrounding memes and how this monetization calls for greater interest for meme creators to protect their work. It will then describe the merits of individual copyright interests in internet memes.

Part III of this article will focus …

Live Chat With Marcus Cole, Marcus Cole, Lou Nanni

2019–Present: G. Marcus Cole

Jun 17, 2020

Join G. Marcus Cole, the Joseph A. Matson Dean of Notre Dame Law School, for a live chat about current events and his vision for new initiatives at the Law School.

Literature Review: How U.S. Government Documents Are Addressing The Increasing National Security Implications Of Artificial Intelligence, Bert Chapman

Libraries Faculty and Staff Scholarship and Research

This article emphasizes the increasing importance of artificial intelligence (AI) in military and national security policy making. It seeks to inform interested individuals about the proliferation of publicly accessible U.S. government and military literature on this multifaceted topic. An additional objective of this endeavor is encouraging greater public awareness of and participation in emerging public policy debate on AI's moral and national security implications..

Law School News: Will Sheehan '20 Selected For Prestigious Immigration Fellowship 06-17-2020, Michael M. Bowden

Life of the Law School (1993- )

No abstract provided.

A Literature Review On Islamic Estate Planning From Year 2014 To 2019, Muhammad MuiʻZz Abdullah, Naimah Mohamad Nasir, Nasrul Hisyam Nor Muhamad, Muhammad Ridhwan Ab. Aziz, Abdul Bari Awang, Mek Wok Mahmud

Library Philosophy and Practice (e-journal)

A systematic property planning is one of the most important processes to ensure that the accumulated property over a person's lifetime can be fully utilized for goodness especially by their heirs. However, there are many problems of neglection and postponement in islamic estate distribution among the heirs nowadays, which result in difficulties in the management process. In fact, because of the unfamiliarity of the property distribution process among the heirs has caused them to ignore existing solutions. Therefore, this article aims to study the factors leading to delays in islamic estate administration and to highlight solutions to the arising issues …