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Teaching "Is This Case Rightly Decided?", Steven Arrigg Koh 2024 Boston University School of Law

Teaching "Is This Case Rightly Decided?", Steven Arrigg Koh

Faculty Scholarship

“Is this case rightly decided?” From the first week of law school, every law student must grapple with this classroom question. This Essay argues that this vital question is problematically under-specified, creating imprecision in thinking about law. This Essay thus advocates that law professors should present students with a three-part framework: whether a case is rightly decided legally, morally, or sociologically.

Additionally, this Essay argues that disaggregating the question exposes deeper deficiencies in legal education. Many law professors do not provide students with serious grounding to engage in rigorous thinking about the relationship between law, morality, and justice, not to …


Vol. 66, No. 13 (April 15, 2024), 2024 Maurer School of Law: Indiana University

Vol. 66, No. 13 (April 15, 2024)

Indiana Law Annotated

No abstract provided.


Tying Law For The Digital Age, Daniel A. Crane 2024 University of Michigan

Tying Law For The Digital Age, Daniel A. Crane

Notre Dame Law Review

Tying arrangements, a central concern of antitrust policy since the early days of the Sherman and Clayton Acts, have come into renewed focus with respect to the practices of dominant technology companies. Unfortunately, tying law’s doctrinal structure is a self-contradictory and incoherent wreck. A conventional view holds that this mess is due to errant Supreme Court precedents, never fully corrected, that expressed hostility to tying based on faulty economic understanding. That is only part of the story. Examination of tying law’s origins and development shows that tying doctrine was built on a now-dated paradigm of what constitutes a tying arrangement. …


Admiralty, Abstention, And The Allure Of Old Cases, Maggie Gardner 2024 Cornell Law School

Admiralty, Abstention, And The Allure Of Old Cases, Maggie Gardner

Notre Dame Law Review

The current Supreme Court has made clear that history matters. But doing history well is hard. There is thus an allure to old cases because they provide a link to the past that is more accessible for nonhistorian lawyers. This Article warns against that allure by showing how the use of old cases also poses methodological challenges. The Article uses as a case study the emerging doctrine of foreign relations abstention. Before the Supreme Court, advocates argued that this new doctrine is in fact rooted in early admiralty cases. Those advocates did not, however, canvass the early admiralty practice, relying …


Rethinking Legislative Facts, Haley N. Proctor 2024 University of Missouri School of Law

Rethinking Legislative Facts, Haley N. Proctor

Notre Dame Law Review

As the factual nature of legal inquiry has become increasingly apparent over the past century, courts and commentators have fallen into the habit of labeling the facts behind the law “legislative facts.” Loosely, legislative facts are general facts courts rely upon to formulate law or policy, but that definition is as contested as it is vague. Most agree that legislative facts exist in some form or another, but few agree on what that form is, on who should find them, and how. This Article seeks to account for and resolve that confusion. Theories of legislative fact focus on the role …


Pretrial Commitment And The Fourth Amendment, Laurent Sacharoff 2024 University of Denver Sturm College of Law

Pretrial Commitment And The Fourth Amendment, Laurent Sacharoff

Notre Dame Law Review

Today, the Fourth Amendment Warrant Clause governs arrest warrants and search warrants only. But in the founding era, the Warrant Clause governed a third type of warrant: the “warrant of commitment.” Judges issued these warrants to jail defendants pending trial. This Article argues that the Fourth Amendment Warrant Clause, with its oath and probable cause standard, should be understood today to apply to this third type of warrant. That means the Warrant Clause would govern any initial appearance where a judge first commits a defendant—a process that currently falls far short of fulfilling its constitutional and historical function. History supports …


Climate Zoning, Christopher Serkin 2024 Vanderbilt Law School

Climate Zoning, Christopher Serkin

Notre Dame Law Review

As the urgency of the climate crisis becomes increasingly apparent, many local governments are adopting land use regulations aimed at minimizing greenhouse gas (GHG) emissions. The emerging approaches call for loosening zoning restrictions to unlock greater density and for strict new green building codes. This Article argues that both approaches are appropriate in some places but not in others. Not all density is created equal, and compact multifamily housing at the urban fringe may actually in-crease GHG emissions. Moreover, where density is appropriate, deregulation will not necessarily produce it. And, finally, green building codes will increase housing costs and so …


Intellectual Property And The Myth Of Nonrivalry, James Y. Stern 2024 William & Mary Law School

Intellectual Property And The Myth Of Nonrivalry, James Y. Stern

Notre Dame Law Review

The concept of rivalry is central to modern accounts of property. When one per-son’s use of a resource is incompatible with another’s, a system of rights to determine its use may be necessary. It is commonly asserted, however, that informational goods like inventions and expressive works are nonrivalrous and that intellectual property rights must therefore be subject to special limitation, if they should even exist at all. This Article examines the idea of rivalry more closely and makes a series of claims about the analysis of rivalrousness for purposes of such arguments. Within that frame-work, it argues that rivalry should …


Who Is A Minister? Originalist Deference Expands The Ministerial Exception, Jared C. Huber 2024 University of Notre Dame Law School

Who Is A Minister? Originalist Deference Expands The Ministerial Exception, Jared C. Huber

Notre Dame Law Review

The ministerial exception is a doctrine born out of the Religion Clauses of the First Amendment that shields many religious institutions’ employment decisions from review. While the ministerial exception does not extend to all employment decisions by, or employees of, religious institutions, it does confer broad—and absolute—protection. While less controversy surrounds whether the Constitution shields religious institutions’ employment decisions to at least some extent, much more debate surrounds the exception’s scope, and perhaps most critically, which employees fall under it. In other words, who is a "minister" for purposes of the ministerial exception?


Proportionalities, Youngjae Lee 2024 Fordham Law School

Proportionalities, Youngjae Lee

Notre Dame Law Review Reflection

“Proportionality” is ubiquitous. The idea that punishment should be proportional to crime is familiar in criminal law and has a lengthy history. But that is not the only place where one encounters the concept of proportionality in law and ethics. The idea of proportionality is important also in the self-defense context, where the right to defend oneself with force is limited by the principle of proportionality. Proportionality plays a role in the context of war, especially in the idea that the military advantage one side may draw from an attack must not be excessive in relation to the loss of …


In Support Of Industry-Conscious Disclosure Standards For Pharmaceutical And Biotechnology Patents, Mark T. Roundtree 2024 Texas A&M University School of Law

In Support Of Industry-Conscious Disclosure Standards For Pharmaceutical And Biotechnology Patents, Mark T. Roundtree

Texas A&M Law Review

One of the fundamental requirements for a patent application is a disclosure of the invention via an accurate written description with sufficient detail to enable the recreation of the invention. The U.S. patent system has historically reviewed patent applications from various industries with a uniform set of requirements and standards. However, the biotechnology and pharmaceutical industries operate on notably extended product development timelines and face unique administrative pressures related to their products when compared with other industries. In response to these pressures, biotechnology and pharmaceutical companies have traditionally applied for patent protections through liberal use of genus claims and other …


The Real Wrongs Of Icwa, James G. Dwyer 2024 Villanova University Charles Widger School of Law

The Real Wrongs Of Icwa, James G. Dwyer

Villanova Law Review

No abstract provided.


A Restatement Of Democracy, Joshua Ulan Galperin 2024 Villanova University Charles Widger School of Law

A Restatement Of Democracy, Joshua Ulan Galperin

Villanova Law Review

No abstract provided.


Reforming The Ministerial Exception, Paul E. McGreal 2024 Villanova University Charles Widger School of Law

Reforming The Ministerial Exception, Paul E. Mcgreal

Villanova Law Review

No abstract provided.


The Fiduciary Duty Of Dissent, Joseph W. Yockey 2024 Villanova University Charles Widger School of Law

The Fiduciary Duty Of Dissent, Joseph W. Yockey

Villanova Law Review

No abstract provided.


Mmu: 04/15/24–04/21/24, Student Bar Association 2024 Notre Dame Law School

Mmu: 04/15/24–04/21/24, Student Bar Association

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Ndls Communicator: Week Of 04.15.24, Notre Dame Law School 2024 Notre Dame Law School

Ndls Communicator: Week Of 04.15.24, Notre Dame Law School

NDLS Communicator

The Latest News

  • Notre Dame Law School strengthens international ties with MOUs with Panthéon-Assas and Lucerne
  • Prof. Robert P. Thompson Shares Insights on Securities Law at ND Law Patricia O'Hara Distinguished Lecture in Law & Business
  • Notre Dame Law School holds third annual Interfaith Dinner in observance of Passover, Easter, Ridván, and Ramadan
  • On April 11 and 12, Jay Tidmarsh participated in two panels at a conference organized by the James Humphreys Complex Litigation Center at George Washington University Law School.
  • Mary Ellen O'Connell was quoted in an article by Morningstar Online, "Nicaragua takes Germany to top UN court seeking …


Of Race, Racism And Racially Motivated Offences: A Review Of The Hate Crime And Public Order (Scotland) Act 2021, Olufemi O. Ilesanmi, Danielle Mckandie 2024 Robert Gordon University

Of Race, Racism And Racially Motivated Offences: A Review Of The Hate Crime And Public Order (Scotland) Act 2021, Olufemi O. Ilesanmi, Danielle Mckandie

Class, Race and Corporate Power

A relationship of social and legal significance seems to exist between the prohibition of expressions or manifestations of racism and the society’s preservation of racial diversity. To discourage racial prejudice and thereby protect each race, the state must manage its diversity well by legislating against racist hate offences. In Scotland, for example, the government boldly accepted that hate crimes, including racially motivated offences, are a serious problem requiring closer attention. Through its Hate Crime and Public Order (Scotland) Act 2021, the state resolves to tackle related criminality.

Focusing on the Act, this review examines whether or how race within the …


Racial Targets, Atinuke O. Adediran 2024 Northwestern Pritzker School of Law

Racial Targets, Atinuke O. Adediran

Northwestern University Law Review

It is common scholarly and popular wisdom that racial quotas are illegal. However, the reality is that since 2020’s racial reckoning, many of the largest companies have been touting specific, albeit voluntary, goals to hire or promote people of color, which this Article refers to as “racial targets.” The Article addresses this phenomenon and shows that companies can defend racial targets as distinct from racial quotas, which involve a rigid number or proportion of opportunities reserved exclusively for minority groups. The political implications of the legal defensibility of racial targets are significant in this moment in American history, where race …


The Promise And Perils Of Tech Whistleblowing, Hannah Bloch-Wehba 2024 Northwestern Pritzker School of Law

The Promise And Perils Of Tech Whistleblowing, Hannah Bloch-Wehba

Northwestern University Law Review

Whistleblowers and leakers wield significant influence in technology law and policy. On topics ranging from cybersecurity to free speech, tech whistleblowers spur congressional hearings, motivate the introduction of legislation, and animate critical press coverage of tech firms. But while scholars and policymakers have long called for transparency and accountability in the tech sector, they have overlooked the significance of individual disclosures by industry insiders—workers, employees, and volunteers—who leak information that firms would prefer to keep private.

This Article offers an account of the rise and influence of tech whistleblowing. Radical information asymmetries pervade tech law and policy. Firms exercise near-complete …


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