University of Notre Dame

Lawyer.2d

Clarifying the “Probate Lending” Debate: A Response to Professors Horton and Chandrasekher

Jeremy Kidd, Ph.D., April 18, 2018

Clarifying the “Probate Lending” Debate: A Response to Professors Horton and Chandrasekher Jeremy Kidd, Ph.D.* Introduction The debate over third-party funding of legal claims just got more interesting.  The debate already had plot twists, such as free-market scholars[1] lining up in opposition to the U.S. Chamber of Commerce[2] and alongside proplaintiff scholars[3] who they oppose […]

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Helpless Giants?  The National Park Service’s Ability to Influence and Manage External Threats to Redwood National and State Parks

Jack McLeod, April 15, 2018

Helpless Giants?  The National Park Service’s Ability to Influence and Manage External Threats to Redwood National and State Parks Jack McLeod* Introduction National parks in the United States exist for two related yet opposed purposes: to preserve areas of national or scenic importance, and to provide for the enjoyment of said areas by the public.[1]  […]

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The Limits of Natural Law Originalism

Mikołaj Barczentewicz, April 15, 2018

The Limits of Natural Law Originalism Mikołaj Barczentewicz* Introduction In Enduring Originalism,[1] Jeffrey Pojanowski and Kevin C. Walsh outline how originalism in constitutional interpretation can be grounded in modern natural law theory as developed by John Finnis.  Their argument to that effect is powerful and constitutes a welcome addition both to natural law theory and […]

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Employment Division v. Smith and State Free Exercise Protections: Should State Courts Feel Obligated to Apply the Federal Standard in Adjudicating Alleged Violations of Their State Free Exercise Clauses?

Matthew Linnabary, April 15, 2018

Employment Division v. Smith and State Free Exercise Protections: Should State Courts Feel Obligated to Apply the Federal Standard in Adjudicating Alleged Violations of Their State Free Exercise Clauses? Matthew Linnabary* In Employment Division v. Smith,[1] the Supreme Court dialed back the level of scrutiny it would apply to claims of violations of the Free […]

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Islam and Religious Freedom: The Experience of Religious Majorities and Minorities

Brett G. Scharffs, April 15, 2018

Islam and Religious Freedom: The Experience of Religious Majorities and Minorities Brett G. Scharffs* Introduction One of the most interesting stories in the history of religious freedom is the journey of the Catholic Church, from being perhaps the most powerful institution on earth opposed to religious freedom in the eighteenth and into the nineteenth centuries, […]

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Headscarf Bans, Equal Treatment, and Minority Integration in the Workplace

Elizabeth A. Clark, February 27, 2018

Headscarf Bans, Equal Treatment, and Minority Integration in the Workplace Elizabeth A. Clark* Andrea Pin’s Essay[1] on the Achbita[2] and Bougnaoui[3] cases effectively highlights the significance of the cases and the singularity of the rulings, as well as the tension they create with other European Union norms and policies.  The European Court of Justice’s (ECJ) […]

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There is a Place for Muslims in America: On Different Understandings of Neutrality

Mark Aaron Goldfelder, February 12, 2018

There is a Place for Muslims in America: On Different Understandings of Neutrality Mark Aaron Goldfeder* Introduction Professor Pin’s essay, which is the starting point for this Symposium’s discussion,[1] makes reference to an earlier article of his—Does Europe Need Neutrality? The Old Continent in Search of Identity.[2]  That article and this Essay focus on the […]

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How Would the European Court of Human Rights Decide Holt v. Hobbs?

Francesca M. Genova, October 25, 2017

How Would the European Court of Human Rights Decide Holt v. Hobbs? Francesca M. Genova* Introduction In 2015, the Supreme Court decided Holt v. Hobbs, which affirmed a prisoner’s right under the Religious Land Use and Institutionalized Persons Act[1] (RLUIPA) to grow a half-inch beard in accordance with his sincerely held Islamic faith.[2]  This case […]

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Is There a Place for Islam in the West?  Adjudicating the Muslim Headscarf in Europe and the United States

Andrea Pin, October 24, 2017

Is There a Place for Islam in the West?  Adjudicating the Muslim Headscarf in Europe and the United States Andrea Pin* Introduction On March 14, 2017, while the world was debating whether the White House was trying to ban Islamic immigration in its executive orders,[1] in the small town of Luxembourg fifteen judges spoke for […]

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The Rank-Order Method for Appellate Subset Selection

Michael J. Hasday, October 24, 2017

The Rank-Order Method for Appellate Subset Selection Michael J. Hasday* Appellate courts in many countries will often use a subset of the entire appellate body to decide cases.  The United States courts of appeals,[1] the European Court of Justice,[2] and the highest courts in Canada, Israel, South Africa, New Zealand, and the United Kingdom all […]

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Dead Precedents

Riley T. Svikhart, August 22, 2017

DEAD PRECEDENTS Riley T. Svikhart* Introduction Shaun McCutcheon’s was the “next big campaign finance case to go before the Supreme Court.”[1]  When the Alabama GOP warned the conservative businessman that his 2010 federal campaign contributions might soon exceed a congressionally imposed limit, he decided to “take a stand.”[2]  Together, McCutcheon and the Republican National Committee […]

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Lafler v. Cooper‘s Remedy: A Weak Response to A Constitutional Violation

May 20, 2017

LAFLER V. COOPER‘S REMEDY: A WEAK RESPONSE TO A CONSTITUTIONAL VIOLATION Matthew T. Ciulla* Introduction The Sixth Amendment’s Counsel Clause preserves an accused’s right to counsel.[1] The mere fact, however, that “a person who happens to be a lawyer is present at trial alongside the accused . . . is not enough to satisfy the constitutional command.”[2] Rather, […]

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Recent Case: Syed v. M-I, LLC

Lowell Ritter, May 19, 2017

RECENT CASE SYED V. M-I, LLC On Issue of First Impression, Ninth Circuit Holds No Extraneous Information Allowed in Fair Credit Reporting Act Disclosure; Such Violation is Willful Under Statute Lowell Ritter* Introduction The Fair Credit Reporting Act (FCRA)[1] was enacted to protect consumers by ensuring the accuracy and fairness of reports provided by consumer […]

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The Native American Struggle Between Economic Growth and Cultural, Religious, and Environmental Protection: A Corporate Solution

Joseph Patterson, May 19, 2017

THE NATIVE AMERICAN STRUGGLE BETWEEN ECONOMIC GROWTH and CULTURAL, RELIGIOUS, AND ENVIRONMENTAL PROTECTION: A CORPORATE SOLUTION Joseph Patterson* Introduction Four days following his inauguration, President Donald Trump signed an executive order “expedit[ing]” the Dakota Access Pipeline (DAPL), otherwise known as the Bakken Oil Pipeline.[1]  This executive order sparked new rounds of protests by the Standing […]

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2016 TRADEMARK YEAR IN REVIEW

May 15, 2017

2016 TRADEMARK YEAR IN REVIEW Mark P. McKenna & Shelby Niemann* Introduction This brief Essay reviews some of the most significant developments in trademark law during the past year. In most cases, we have interpreted “year” fairly liberally, particularly to highlight some longer-term trends. We focus on six areas: (1) the constitutionality of section 2(a) of the […]

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The Courts and the People in a Democratic System: Against Federal Court Exceptionalism

Simona Grossi, April 26, 2017

  THE COURTS AND THE PEOPLE IN A DEMOCRATIC SYSTEM: AGAINST FEDERAL COURT EXCEPTIONALISM Simona Grossi* The law of federal procedure is on the Supreme Court’s docket for the October 2016 Term, with granted petitions addressing pleading sufficiency,[1] standing,[2] and jurisdiction.[3]  And, of course, the Advisory Committee on Rules of Civil Procedure continues its annual […]

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Formal Declarations of Intended Childcare Parentage

March 30, 2017

Formal Declarations of Intended Childcare Parentage Jeffrey A. Parness Introduction Legal parentage for childcare purposes under American state law is significantly and rapidly expanding. The new parentage norms are growing increasingly imprecise.[1] No longer is childcare parentage—that is, the superior right of a parent to the “care, custody, and control” of a child[2]—only established by […]

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Incentivizing Graffiti: Extending Copyright Protection to a Prominent Artistic Movement

Sara Cloon, December 22, 2016

Incentivizing Graffiti: Extending Copyright Protection to a Prominent Artistic Movement Sara Cloon* Introduction “Copyright is for losers.”[1] Or so asserted graffiti artist Banksy while also asserting his rights under the Copyright, Designs and Patent Act of 1988.[2] Banksy claims to be anti-copyright, yet simultaneously uses copyright law to enforce his intellectual property rights. As the […]

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Addressing the Retirement Crisis with Shadow 401(K)s

November 28, 2016

Addressing the Retirement Crisis With Shadow 401(k)s Deepa Das Acevedo* Introduction The United States has been juggling a handful of socio-economic crises lately. The subprime mortgage crisis, the auto industry crisis, the education crisis, the obesity crisis—the list isn’t short and shows no signs of becoming so. Within this group of economically and socially disruptive […]

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Through the Looking Glass in Indiana: Mandatory Reporting of Child Abuse and the Duty of Confidentiality

Alberto Bernabe, November 2, 2016

Through the Looking Glass in Indiana: Mandatory Reporting of Child Abuse and the Duty of Confidentiality Alberto Bernabe* Introduction It is often said that the duty of confidentiality is the most important of all the fiduciary duties attorneys owe their clients.[1] This is so because without confidentiality, clients would presumably not feel free to seek […]

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