Legal Ethics and Professional Responsibility Commons^™

The Consequences Today Of The United States' Brutal Post-9/11 Interrogation Techniques, Peter Jan Honigsberg

Notre Dame Journal of Law, Ethics & Public Policy

Penetrating the minds and souls of alleged terrorists while still upholding the constitution, federal law, and the human rights obligation to treat the suspects with dignity and without torture or cruel, inhuman, and degrading treatment was not the immediate objective for high-ranking American officials and military interrogators in the early years following the attacks on the World Trade Center in New York and the Pentagon in Washington, D.C. on September 11, 2001. Although the United States was a party to the Geneva Conventions (GC), the International Covenant on Civil and Political Rights (ICCPR), and the Convention Against Torture (CAT)—all three …

Dynamic Regulatory Constitutionalism: Taking Legislation Seriously In The Judicial Enforcement Of Economic And Social Rights, Richard Stacey

Notre Dame Journal of Law, Ethics & Public Policy

The international human rights revolution in the decades after the Second World War recognized economic and social rights alongside civil and political rights. The Universal Declaration of Human Rights in 1949, the International Covenant on Economic, Social, and Cultural Rights in 1966, regional treaties, and subject-specific treaties variously describe rights to food, shelter, health, and education, and set out state obligations for the treatment of children. When they first appeared, these international, economic, and social rights instruments raised questions about whether economic and social rights are justiciable in domestic legal contexts and whether they can be meaningfully enforced by courts …

Dead Or Alive? The Law, Policy, And Market Effects Of Legislation On Unclaimed Life Insurance Benefits, James M. Carson, Robert E. Hoyt, Tim R. Samples

Notre Dame Journal of Law, Ethics & Public Policy

A wave of multi-state audits on the insurance industry’s use of the Social Security Administration’s Death Master File (DMF) stirred national controversy over the status of unclaimed life insurance proceeds. Multi-state investigations uncovered “asymmetric” use of the DMF among many large insurance companies. Accusations of unethical behavior led to numerous settlement agreements between state regulators and insurers. Payouts and fines stemming from these settlements already number in the billions of dollars. Legislative responses are also underway. Some states have adopted—and others are considering—legislation requiring life insurers to search the DMF to identify and pay (or eascheat) unclaimed death benefits. Currently, …

Representing The United States Government: Reconceiving The Federal Prosecutor's Role Through A Historical Lens, Scott Ingram

Notre Dame Journal of Law, Ethics & Public Policy

For nearly 100 years courts and legal scholars have held prosecutors to the “justice” standard, meaning that the prosecutor’s first duty is to ensure that justice is done. With this command, prosecutors have increased their discretion. The modern prosecutor’s power is unrivaled in the criminal justice system. Judges and defense attorneys have ceded some of their power to prosecutors. The prosecutor’s power has led a host of commentators to critique prosecutorial use of power for a variety of reasons. Rather than add to this voluminous literature by defending or critiquing prosecutorial power, this Article challenges the underlying assumption of prosecutorial …

Can Armed Drones Halt The Trend Of Increasing Police Militarization?, Ian Thresher

Notre Dame Journal of Law, Ethics & Public Policy

Following presidential declarations of “war” on drugs and terror, domestic law enforcement agencies were saddled with difficult and dangerous new duties. They responded to the danger by becoming more dangerous themselves; increasingly adopting the training, tactics, and equipment of the United States military. This “militarization” of domestic police officers has, predictably, led to a breakdown in community policing, almost one thousand fatal shootings by police officers per year, and growing rifts between law enforcement agencies and the communities they are sworn to protect. In this essay, I examine whether police drones armed with non-deadly force might, perhaps paradoxically, help to …

Analysis Of Statutory Religious Accomodations For State-Employed Religious Objectors To Same-Sex Marriage Solemnization, Nicholas J. Schilling Jr.

Notre Dame Journal of Law, Ethics & Public Policy

The Supreme Court’s landmark decision in Obergefell v. Hodges legalized same-sex marriage. The decision aggravated a tension between advocates of protection of religious beliefs that reject as wrong same-sex marriage and sponsors of the new legal norm of same-sex marriage as a fundamental right.

Prior to—and in response to—the Supreme Court’s decision in Obergefell, at least ten state legislatures debated bills that would provide exemptions for state officials who, on religious grounds, objected to the certification of marriage licenses for same-sex couples. Unless otherwise established by state law, officials who swear an oath to protect and defend the Constitution must …

Wait, Who Are We Talking About Here? Searching For A Consistent Approach To Applying Rfra To Corporations, Steven J. Harrison

Notre Dame Journal of Law, Ethics & Public Policy

There is perhaps no idea in contemporary American law that is more publicly contentious than that of “corporate personhood.” Of all of the Supreme Court cases dealing with corporations and the corporate entity, few probably thought that a decision could surpass Citizens United in public controversy and divisiveness produced by the decision, which brought the legal fiction of the “corporate person” to the forefront of popular debate and discussion. Then came Burwell v. Hobby Lobby Stores, Inc., which not only addressed whether corporations could “act” in a manner that seemed only a possibility for “real” or “natural” persons, which recalled …

Efficiency, Enforcement, And Punishment, Jim Staihar

Notre Dame Journal of Law, Ethics & Public Policy

The law and economics literature on punishment reveals strong reasons of efficiency to adopt an extreme enforcement policy for any type of crime as a means to promoting deterrence. Under such an extreme policy, a crime’s severity of punishment would be set extremely high, but its probability of punishment would be set extremely low by minimizing the resources devoted to enforcing the law against the crime. This sort of policy applied to a moderately serious crime, such as a simple assault, would seem strongly unreasonable all things considered. However, it is not immediately obvious why such a policy would be …

Investigative Journalism And Counter Terrorism Laws, Clive Walker

Notre Dame Journal of Law, Ethics & Public Policy

Since terrorism is now perceived as a primary and pervasive threat to state security, many states have adopted broad legal definitions of “terrorism” and, upon that basis, have enacted correspondingly expansive policing powers and criminal offences. As a dramatic instance of how these approaches, which affect major Western jurisdictions such as the U.S. and U.K., this paper will focus on the paradigm case of David Miranda. In August 2013, Miranda was transporting computer materials (including files from security agencies) supplied by Edward Snowden, a former contractor with the U.S. National Security Agency, to journalist Glenn Greenwald to assist ongoing disclosures …

The Equivalence Of Religion And Conscience, Lucien J. Dhooge

Notre Dame Journal of Law, Ethics & Public Policy

This Article examines issues posed by the equation of religious liberty with secular conscience, utilizing federal law and the law in those states which have adopted religious freedom restoration acts (RFRAs). The Article initially addresses the definition of religion through an examination of applicable literature and federal and state case law. The same approach is utilized to define conscience. The Article then examines similarities between the two concepts and the implications of their equivalence. The Article concludes that religion and conscience are moral equivalents that require equal legal treatment. However, equal treatment should proceed with caution in order to address …

Failure To Protect: Our Civil System's Chronic Punishment Of Victims Of Domestic Violence, Kate Ballou

Notre Dame Journal of Law, Ethics & Public Policy

This Note examines the effectiveness and enforceability of civil restraining orders in domestic violence cases in the wake of Town of Castle Rock v. Gonzalez, which held that there is no constitutional right to the enforcement of a restraining order. This Note analyzes the impact of Gonzales and the effectiveness of various restraining order statutory schemes more broadly. This Note subsequently addresses that as a result of experiencing continued contact from their attackers, victim mothers are more likely to have their children removed by the state in child welfare proceedings, due to the established presumption in most family courts that …

Competent Hunger Strikers: Applying The Lessons From Northern Ireland To The Force-Feeding In Guantanamo, Sara Cloon

Notre Dame Journal of Law, Ethics & Public Policy

The United States allows force-feeding of prisoners, regardless of their state of mind or mental health because they deem preservation of life as paramount. In the United Kingdom, a prisoner who is of a sound mind “can be allowed to starve himself to death.”1 This difference is due to the balance between the importance of preservation of life and of the right to self-determination and autonomy in medical decisions. My note will first briefly explore the history of force-feeding prisoners who are protesting for political purposes in both countries, and the relevant cases and statues that led up to the …

Internalizing Private Prison Externalities: Let's Start With The Ged, David M. Siegel

Notre Dame Journal of Law, Ethics & Public Policy

Prison education is a remarkably good investment for society, yet an increasing proportion of inmates have no access to it because the operators of the prisons in which they are held have a powerful incentive not to provide it: they make more money that way. Critics and analysts of private prison operators have suggested various incentive structures to improve their performance, but most jurisdictions focus on the operator’s cost to the contracting entity. The social costs imposed by foregoing prison education are not part of the arrangement between a private prison operator and a jurisdiction with which it contracts. Although …

Note, The Role Of Nonverbal Persuasion In Juror Decision-Making And The Need To Regulate The Trial Consulting Industry, Jaclyn M. D'Esposito

Notre Dame Journal of Law, Ethics & Public Policy

This Note agrees that the trial consulting industry merits regulation, it departs from the literature inasmuch as it argues that the profession should be regulated with respect to its influence on juror decision-making, as opposed to trial consultants' professional and ethical obligations. To that end, Part II seeks to establish the persuasive effect of nonverbal communication and provides a brief history of the trial consulting industry. Part III continues with an examination into the relevant law with respect to nonverbal communication and trial consulting. In particular, Part III.A.1 considers the various ways in which the law recognizes the role of …

The Moral Obligation Of Law Schools To Address Law Student Well-Being: A Review Essay About The Happy Laywer, Todd David Peterson

Notre Dame Journal of Law, Ethics & Public Policy

This Article argues that law schools have an obligation to educate law students about how they can achieve meaningful and personally satisfying careers in the law and, in addition, how they can buffer themselves against the stress and depression that far too frequently arise in both law school and the practice of law.

Note, Establishing Rule Of Law Through Informal Justice Systems And Development Programs, Patrick Akers

Notre Dame Journal of Law, Ethics & Public Policy

Rule of law occurs when a government and its citizens are bound by and abide by the law. Rule of law has no one-size-fits-all approach, and any initiative must take into account cultural norms and how institutions and individuals are incentivized. Informal justice systems are best positioned to do this, particularly for the poor and indigenous ethnic groups. While informal justice systems are criticized for human rights violations and elite capture, among other things, some of these shortfalls are adequately addressed through existing development programs, which are most effective when subject to market forces and when they utilize participatory accountability …

"I Still Live In Guantánamo!" Human Rights Abuses Continue After Detainees Leave Guantánamo, Peter Jan Honigsberg

Notre Dame Journal of Law, Ethics & Public Policy

This essay will describe the experiences of detainees who have resettled in third or host countries, as well as detainees who have been resettled in their home countries. The essay is based on interviews W2G has filmed with the detainees, in addition to other sources. The overarching message from the interviews and research is that when the U.S. transfers detainees to third countries, the U.S. has not been mindful in finding the best fit or even a suitable environment for the men as they re-enter society. In addition, in transferring detainees out of Guantánamo-whether to third countries or to the …

Front Matter

Notre Dame Journal of Law, Ethics & Public Policy

Table of Contents

The Restricted Nature Of The Profit Motive: Perspectives From Law, Business, And Economics, Keith William Diener

Notre Dame Journal of Law, Ethics & Public Policy

This essay investigates the permissible limits of the profit motive in business contexts by examining theory and cases from law, business, and economics. This essay aims to remind the reader that the theoretical principles upon which the profit motive is founded require abidance to law, ethics, and customary societal rules. Accordingly, the application of the profit motive as a purported justification for illegal or immoral business decisions does not withstand scrutiny. Part I distinguishes between restricted and unrestricted profit motives, and illustrates this distinction by the use of three business cases that improperly appeal to the unrestricted profit motive. Part …

Roe V. Wade & The Legal Implications Of State Constitutional "Personhood" Amendments, Clark D. Forsythe, Keith Arago

Notre Dame Journal of Law, Ethics & Public Policy

Two generations after the renewed focus on state constitutions, questions remain whether state constitutional amendments are an effective means for changing public policy, for protecting human life, or for challenging Roe v. Wade. Our aim in this article is to examine their likely legal impact on state law and their legal impact on Roe v. Wade. Part II summarizes the history and current legal protection for the unborn child as a human being or person in the law. Part III examines whether these "personhood" amendments conflict with Roe. Part IV looks at the practical legal implications of applying the due …

Note, Are Officers Equipped To Protect And Serve Their Communities? An Examination Into The Militarization Of America's Police And Police Legitimacy, Jaclyn M. D'Esposito

Notre Dame Journal of Law, Ethics & Public Policy

Tension between police officers and local residents is nothing new. Community relationships with and perceptions of law enforcement have ebbed and flowed over the years. Nonetheless, the fact that recent criticisms of law enforcement practices are not novel does not mean that claims about mistrust in local police are unfounded. However, surprisingly absent from discussions about present problems with law enforcement are what caused the "broken relationship" between officers and their communities, and how to mend these ever-increasing rifts. This Note seeks to fill that void by uncovering what has caused the current and deteriorated relationship between law enforcement and …

Note, Inhibiting Educational Choice: State Constitutional Restrictions On School Choice, Patrick Loughery

Notre Dame Journal of Law, Ethics & Public Policy

Kentucky, Massachusetts, and Michigan all have restrictions that do not permit public funds to be allocated for private school choice programs like tuition scholarships. This article will help facilitate the debate in these three states as they consider the best option for providing the children of their state with a quality education. This article will proceed in five parts. Part I gives a brief history of private school choice and outlines the current legal issues facing state private school choice programs. It is important to understand the historical context before proceeding to the current situation. Parts II, III, and IV …

Note, Two Wrongs Do Not Make A Right: The Need To Revisit The Ellerth/Faragher Affirmative Defense, Robert R. Graham Iii

Notre Dame Journal of Law, Ethics & Public Policy

In the seventeen years since the Court's initial pronouncement, and Justice Thomas' denouncement, of the Ellerth/Faragher affirmative defense, a split has materialized among the United States courts of appeals as to how to correctly apply the defense. Namely, as the case law below illustrates, there is disagreement as to whether both prongs of the defense are necessary in cases dealing with a single, severe instance of sexual harassment. While these "single, severe" cases sparked the debate, they also highlighted a larger issue with the structure of the Ellerth/Faragher defense that applies equally to cases of pervasive harassment- whether an employer …

Presumption Law In Action: Why States Should Not Be Seduced Into Adopting Joint Custody Presumption, Maritza Karmely

Notre Dame Journal of Law, Ethics & Public Policy

Many argue that the answer is simple: equal custody-or a presumption for joint custody-is not only fair to parents but also best for children. A presumption for judges has surface appeal: it provides an equitable-sounding starting point. Indeed, many legislators throughout the country are considering new laws that would mandate a presumption for shared custody. However, recent social science research, legal scholarship, and judicial decisions suggest that shared parenting may not always be in a child's best interests. In this paper, I argue against the presumption that shared custody is in a child's best interest. An analysis of recent case …

Front Matter

Notre Dame Journal of Law, Ethics & Public Policy

Table of Contents

Note, American, Isis, And Social Media: How The Material Support Statute Can Help Combat Against Their Collision, Morgan Stacey

Notre Dame Journal of Law, Ethics & Public Policy

In this Note, I argue that individuals who support ISIS through encouragement and participation in the recruitment process through social media fall into criminal prosecution under the statute, as they have attempted to provide material support, namely personnel, to the foreign terrorist organization. This support of ISIS through social media is not protected First Amendment speech, as the support turns into an attempt to provide personnel or finances to the group. Part I will focus on ISIS as an organization, its history, and its recruitment strategies. It will discuss ISIS's innovative use of social media for recruitment and its dangerously …

Skin In The Game: Why Business Lawsuits Get Third-Party Funded, Radek Goral

Notre Dame Journal of Law, Ethics & Public Policy

The main claim of the paper is that the changing realities of legal practice create lasting attorney-funder alliances. In effect, among a funder, a friendly law firm, and the client circle of such firm, there is not one attorney-client-funder triangle, but many; and they all revolve around the common link between the two repeat players. The emergence of "litigation funding cones" impacts the attorney-client relationship. The paper argues that in third-party funded litigation, the attorney-funder bond, often informal and confidential, may leave represented litigants in a vulnerable position. Such vulnerability is unlikely to be adequately addressed solely by contract. Therefore, …

Note, The Unconstitutionality Of The Computer Fraud And Abuse Act, Michael C. Mikulic

Notre Dame Journal of Law, Ethics & Public Policy

This Note deals with 18 U.S. C. 1030, otherwise known as the Computer Fraud and Abuse Act ("CFAA "). The CFAA is the federal computer hacking statute. This Note discusses the statute's history, purpose, and the recent circuit split regarding its interpretation. There are two ways to interpret the statute: one is broad and the other narrow. The broad interpretation, which many, if not a majority of circuit courts adopt, extends criminal liability to potentially millions of unsuspecting Americans. The approach is wholly unfair and unreasonable. But more than that, this Note argues that the broad interpretation is unconstitutional. There …

Note, Physician-Owned Distributorships, Jennifer Brougham

Notre Dame Journal of Law, Ethics & Public Policy

The physician-owned distributor ("POD") is one example of the various business entities that have materialized. In recent years, a hot debate has ensued over whether PODs are legitimate business arrangements that offer solutions, or instead exacerbate industry challenges and implicate improper conduct. This Note will assess both sides of the debate and take the position that the harms created by the existence of PODs dwarf any potential benefits. PODs create conflicts of interest and are susceptible to abuse, working against the goals of health care reform-improving quality, affordability, and accessibility. Part I of this Note will provide an overview of …

Re-Designing Law And Lawyering For The Information Age, Thomas D. Barton

Notre Dame Journal of Law, Ethics & Public Policy

This Article analyzes the intersection of three aspects of law, lawyering, and Information Age technology and culture, describing how they disrupt and inhibit one another even as they supply possible opportunities for each to grow and innovate. The Article urges that Information Age challenges to traditional legal institutions and thinking become the foundation for reforms to legal systems and individual lawyering. In embracing changes made possible by emerging technology, the Rule of Law may be strengthened globally and the Preventive/Proactive style of lawyering can be re-invigorated. The Article begins by describing the Preventive/Proactive lawyering ("PPL") style, and offers an example …