University of Notre Dame

Lawyer.2d

On the Rightful Deprivation of Rights

January 10, 2023

View PDF ARTICLE ON THE RIGHTFUL DEPRIVATION OF RIGHTS Frederick Schauer* When people are deprived of their property rights so that the state can build a highway, a school, or a hospital, they are typically compensated through what is commonly referred to as “takings” doctrine.  But when people are deprived of their free speech rights […]

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Bostock and Textualism: A Response to Berman and Krishnamurthi

January 10, 2023

Andrew Koppelman, 98 Notre Dame L. Rev. Reflection 89 (2022)

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Revisiting the Fried Chicken Recipe

January 10, 2023

Zachary B. Pohlman, 98 Notre Dame L. Rev. Reflection 76 (2022)

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The First Amendment and Military Justice: Threats to Political Neutrality

January 10, 2023

View PDF NOTE THE FIRST AMENDMENT AND MILITARY JUSTICE Joshua Paldino* INTRODUCTION In his order in U.S. Navy SEALs 1-26 v. Biden, Judge Reed O’Connor opened by stating that “[o]ur nation asks the men and women in our military to serve, suffer, and sacrifice.  But we do not ask them to lay aside their citizenry […]

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Social Trust in Criminal Justice: A Metric

January 10, 2023

View PDF ARTICLE SOCIAL TRUST IN CRIMINAL JUSTICE:A METRIC Joshua Kleinfeld* & Hadar Dancig-Rosenberg** What is the metric by which to measure a well-functioning criminal justice system?  If a modern state is going to measure performance by counting something—and a modern state will always count something—what, in the criminal justice context, should it count?  Remarkably, […]

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State Digital Services Taxes: A Good and Permissible Idea (Despite What You Might Have Heard)

January 10, 2023

View PDF ARTICLE STATE DIGITAL SERVICES TAXES:A GOOD AND PERMISSIBLE IDEA(DESPITE WHAT YOU MIGHT HAVE HEARD) Young Ran (Christine) Kim* & Darien Shanske** Tax systems have been struggling to adapt to the digitalization of the economy.  At the center of the struggles is taxing digital platforms, such as Google or Facebook.  These immensely profitable firms […]

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Solidarity Federalism

January 10, 2023

View PDF ARTICLE SOLIDARITY FEDERALISM Erin F. Delaney* & Ruth Mason** Studies of federalism, especially in the United States, have mostly centered on state autonomy and the vertical relationship between the states and the federal government.  This Article approaches federalism from a different perspective, one that focuses on state solidarity.  We explain how solidarity structures […]

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The Constitutional Law of Interpretation

January 10, 2023

View PDF ARTICLE THE CONSTITUTIONAL LAW OF INTERPRETATION Anthony J. Bellia Jr.* & Bradford R. Clark** The current debate over constitutional interpretation often proceeds on the assumption that the Constitution does not provide rules for its own interpretation.  Accordingly, several scholars have attempted to identify applicable rules by consulting external sources that governed analogous legal […]

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Put Mahanoy Where Your Mouth Is: A Closer Look at When Schools Can Regulate Online Student Speech

January 10, 2023

View PDF NOTE PUT MAHANOY WHERE YOUR MOUTH IS:A CLOSER LOOK AT WHEN SCHOOLSCAN REGULATE ONLINE STUDENT SPEECH Courtney Klaus* INTRODUCTION It was the Snapchat story that sparked four years of litigation,1  viral press coverage,2  and a trendy t-shirt design3 : “Fuck school fuck softball fuck cheer fuck everything.”4   By June of 2021, it was finally […]

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Democracy’s Forgotten Possessions: U.S. Territories’ Right to Statehood Through Constitutional Liquidation

January 10, 2023

View PDF NOTE DEMOCRACY’S FORGOTTEN POSSESSIONS: U.S. TERRITORIES’ RIGHT TO STATEHOOD THROUGH CONSTITUTIONAL LIQUIDATION Joshua Stephen Ebiner* INTRODUCTION The United States has five permanently inhabited, unincorporated territories—American Samoa, Guam, the Northern Mariana Islands, Puerto Rico, and the U.S. Virgin Islands (the “Territories”)—which account for approximately four million U.S. citizens and nationals.1   The concept of an […]

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Debs and the Federal Equity Jurisdiction

January 5, 2023

View PDF ARTICLE DEBS AND THE FEDERAL EQUITY JURISDICTION Aditya Bamzai* & Samuel L. Bray** The United States can sue for equitable relief without statutory authorization.  The leading case on this question is In re Debs, and how to understand that case is of both historical and contemporary importance.  Debs was a monumental opinion that […]

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Emergency-Docket Experiments

November 17, 2022

Edward L. Pickup & Hannah L. Templin, 98 Notre Dame L. Rev. Reflection 1 (2022)

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Speaking of the Speech or Debate Clause: Revising State Legislative Immunity

November 16, 2022

View PDF NOTE SPEAKING OF THE SPEECH OR DEBATE CLAUSE: REVISING STATE LEGISLATIVE IMMUNITY Shane Coughlin* INTRODUCTION An increasing number of America’s most contentious issues will be resolved in state legislatures.  Consequently, the ability of litigants to seek judicial review of a legislature’s actions is becoming more important.  The scope of state legislative immunity, a […]

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Against Secondary Meaning

November 16, 2022

View PDF ARTICLE AGAINST SECONDARY MEANING Jeanne C. Fromer* Trademark law premises protection and scope of marks on secondary meaning, which is established when a mark develops sufficient association to consumers with a business as a source of goods or services in addition to the mark’s linguistic primary meaning.  In recent years, scholars have proposed […]

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The Moral Authority of Original Meaning

November 16, 2022

View PDF ARTICLE THE MORAL AUTHORITY OF ORIGINAL MEANING J. Joel Alicea* One of the most enduring criticisms of originalism is that it lacks a sufficiently compelling moral justification.  Scholars operating within the natural law tradition have been among the foremost critics of originalism’s morality, yet originalists have yet to offer a sufficient defense of […]

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Remedying the Immortal: The Doctrine of Accession and Patented Human Cell Lines

November 16, 2022

NOTE REMEDYING THE IMMORTAL: THE DOCTRINE OF ACCESSION AND PATENTED HUMAN CELL LINES Julia E. Fissore-O’Leary* INTRODUCTION Justice Cardozo once remarked, “[e]very human being of adult years and sound mind has a right to determine what shall be done with [their] own body.”1   Henrietta Lacks was not afforded this right.2   In 1951, Lacks, a thirty-one-year-old […]

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Interring the Unitary Executive

November 16, 2022

View PDF ARTICLE INTERRING THE UNITARY EXECUTIVE Christine Kexel Chabot* The President’s power to remove and control subordinate executive officers has sparked a constitutional debate that began in 1789 and rages on today.  Leading originalists claim that the Constitution created a “unitary executive” President whose plenary removal power affords her “exclusive control” over subordinates’ exercise […]

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Privacy Qui Tam

November 16, 2022

View PDF ARTICLE PRIVACY QUI TAM Peter Ormerod*  Privacy law keeps getting stronger, but surveillance-based businesses have proven immune to these new legal regimes.  The disconnect between privacy law in theory and in practice is a multifaceted problem, and one critical component is enforcement. Today, most privacy laws are enforced by governmental regulators—the Federal Trade […]

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Rethinking Constitutionally Impermissible Punishment

November 16, 2022

Nadia Banteka & Erika Nyborg-Burch, 98 Notre Dame L. Rev. Reflection 40 (2022)

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Religious Liberty and Judicial Deference

November 3, 2022

View PDF ARTICLE RELIGIOUS LIBERTY AND JUDICIAL DEFERENCE Mark L. Rienzi* Many of the Supreme Court’s most tragic failures to protect constitutional rights—cases like Plessy v. Ferguson, Buck v. Bell, and Korematsu v. United States—share a common approach: an almost insuperable judicial deference to the elected branches of government.  In the modern era, this approach […]

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