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LAW: GENERAL (11 journals)

Showing 1 - 11 of 11 Journals sorted alphabetically
American Journal of Legal History     Full-text available via subscription   (Followers: 12)
Anuario de Derechos Humanos     Open Access   (Followers: 1)
Connecticut Law Tribune     Full-text available via subscription  
Estudios de Derecho     Open Access   (Followers: 2)
Ius Et Veritas     Open Access   (Followers: 4)
Journal of Scholarly Perspectives     Open Access   (Followers: 1)
Notre Dame Law Review     Open Access   (Followers: 1)
Restorative Justice     Full-text available via subscription   (Followers: 6)
Revista Interdisciplinar de Direito     Open Access   (Followers: 2)
Transportrecht     Hybrid Journal   (Followers: 1)
Zeitschrift für das Privatrecht der Europäischen Union - European Union Private Law Review / Revue de droit privé de l'Union européenne     Hybrid Journal   (Followers: 1)
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Notre Dame Law Review
Journal Prestige (SJR): 1.086
Citation Impact (citeScore): 1
Number of Followers: 1  

  This is an Open Access Journal Open Access journal
ISSN (Print) 0745-3515
Published by Notre Dame Law School Homepage  [2 journals]
  • "Of Substantial Religious Importance": A Case for a Deferential Approach
           to the Ministerial Exception

    • Authors: Allison H. Pope
      Abstract: 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 II analyzes several potential definitions of “minister” and argues that a civil court when applying the term must defer to the religious group’s determination of which of its employees play a role “of substantial religious importance.” Such a deferential standard is necessary in order to preserve the religious autonomy contemplated by the Religion Clauses.
      PubDate: Fri, 19 Jun 2020 08:23:02 PDT
       
  • A Different Kind of Prisoner's Dilemma: The Right to the Free
           Exercise of Religion for Incarcerated Persons

    • Authors: Daniel T. Judge
      Abstract: 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 by considering the international right to religious freedom under the Universal Declaration of Human Rights and the European Convention on Human Rights and then discusses recent case precedents in the European Court of Human Rights. Finally, Part III offers conclusions and recommendations regarding how the right ought to be interpreted and applied both domestically and internationally for the better protection of a prisoner’s right to a preacher and a place to worship. This includes both jurisprudentially in emerging cases such as Holt v. Hobbs II and in the context of international policy through means such as the U.S. State Department’s new Commission on Unalienable Rights.
      PubDate: Fri, 19 Jun 2020 08:22:50 PDT
       
  • The VRA at a Crossroads: The Ability of Section 2 to Address
           Discriminatory Districting on the Eve of the 2020 Census

    • Authors: Ben Boris
      Abstract: 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 combat modern day vote dilution. Briefly, these two problems are as follows. First, the sufficient-size Gingles precondition, which every plaintiff suing under section 2 for a districting claim must meet, is interpreted too stringently. Second, the Act lacks the capacity to combat one of the most notorious forms of discriminatory districting, “packing.”Part III then proposes two solutions to the above-identified problems that provide meaningful paths for relief without disturbing the core precedent surrounding the Act. First, coalition districts should be recognized under the first Gingles prong. Second, section 2 claims should be interpreted broadly to allow evaluation of minority vote dilution on a statewide or systemwide basis.
      PubDate: Fri, 19 Jun 2020 08:22:37 PDT
       
  • Adequate and Effective: Postconviction Relief Through Section 2255 and
           Intervening Changes in Law

    • Authors: Ethan D. Beck
      Abstract: 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 for a uniform criminal system. Part II and Part III describe the majority and minority approaches to interpreting § 2255(e). Part II does so primarily by describing two Fourth Circuit cases, In re Jones and United States v. Wheeler, as they are an instructive introduction to the majority position. Part IV evaluates the majority and minority positions and argues that the minority’s narrow interpretation of the clause is superior to that of the expansive approach of the majority. Finally, Part V provides a diagnosis of the division between the circuits on the savings clause, as well as a brief conclusion on the relative merits of the two positions.
      PubDate: Fri, 19 Jun 2020 08:22:24 PDT
       
  • Toward a More Apparent Approach to Considering the Admission of Expert
           Testimony

    • Authors: Thomas D. Schroeder
      Abstract: 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.
      PubDate: Fri, 19 Jun 2020 08:22:12 PDT
       
  • Only Where Justified: Toward Limits and Explanatory Requirements for
           Nationwide Injunctions

    • Authors: Milan D. Smith Jr.
      Abstract: 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 should rule are insufficient reasons to grant nationwide injunctions, whether on Article III grounds or simply as a prudential matter. In Part IV, I analyze two problems with nationwide injunctions that I find particularly problematic. I argue that these problems, in combination with numerous other disadvantages of nationwide injunctions noted by other commentators, should move courts to attempt reforms aimed at limiting the circumstances under which nationwide injunctions may be issued. In Part V, I discuss potential reform ideas. I conclude that both substantive limits and certain procedural requirements would help limit the issuance of nationwide injunctions to cases in which they are truly justified.
      PubDate: Fri, 19 Jun 2020 08:21:59 PDT
       
  • A Workable Substantive Due Process

    • Authors: Timothy M. Tymkovich et al.
      Abstract: In this Article, we have three objectives. First, we’d like to add our own conceptualization of the various flavors of due process adjudication. Our aim here is not to add a new theory, but to explain what exists in new ways— to put all the pieces of the due process puzzle together and explain how they relate to each other. To the surprise of some, perhaps, we find a small kernel of originalist truth within current forms of substantive due process. In short, the “shocks the conscience” strand of substantive due process jurisprudence prohibits some egregious torts by the state. At a certain level of abstraction, this approach can be squared with the original public meaning of the Fourteenth Amendment’s Due Process Clause during ratification.Second, we will explain the confusion currently overtaking the circuits. The confusion we refer to is not about nitty-gritty details. It is fundamental. Courts do not know what law to apply to a given plaintiff’s claim under substantive due process doctrine. There are two generic tests floating around— the shocks-the-conscience test and the fundamental-rights test. Courts disagree about when each test applies. Then there are more specific tests tailored to particular contexts, like pretrial detention. No one knows whether these more specific tests apply exclusively, or whether they apply in addition to one or both generic ones. Our goal here is to explain the debate.Last, we will propose two solutions. Looking to the history of Due Process Clause jurisprudence, as well as to the Supreme Court’s stated policy concerns in this area, we propose dividing substantive due process into (1) cases challenging legislative action, (2) cases challenging executive action, and (3) cases challenging judicial action (though those distinctions themselves will require line drawing).
      PubDate: Fri, 19 Jun 2020 08:21:47 PDT
       
  • Certification Comes of Age: Reflections on the Past, Present, and Future
           of Cooperative Judicial Federalism

    • Authors: Kenneth F. Ripple et al.
      Abstract: In 1995, the American Judicature Society (AJS) undertook a comprehensive survey of certification. This Article uses the AJS’s survey as a starting point to examine the development of certification over the past twenty-five years. Were the fears of its critics well founded, or have the federal and state judiciaries adapted to mitigate the shortcomings of certification' Has certification been a useful tool in allowing for development of state law by the state judiciary, or has it been an imposition on the judiciary of a coequal sovereign'Beyond these questions, this Article also will look at how certification has expanded beyond its diversity origins to other areas of law where state law expertise is uniquely important, such as habeas and the Armed Career Criminal Act (ACCA). Finally, the Article will consider ways in which the certification process can be further refined and expanded for the benefit of both the state and federal judiciaries as well as litigants.
      PubDate: Fri, 19 Jun 2020 08:21:34 PDT
       
  • A Survivor's Perspective: Federal Judicial Selection from George Bush
           to Donald Trump

    • Authors: Leslie H. Southwick
      Abstract: 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 the observer. I will try to avoid suggesting blame, but it is my hope to suggest the forces—political, historical, and even jurisprudential—that have propelled the process in the direction we have gone.
      PubDate: Fri, 19 Jun 2020 08:21:21 PDT
       
  • The Great Writ and Federal Courts: Judge Wood's Solution in Search of
           a Problem

    • Authors: William H. Pryor Jr.
      Abstract: Judge Diane Wood provides, in her characteristically efficient prose, a thoughtful overview of the history of the Great Writ in service of a thesis that her essay otherwise fails to support. Judge Wood invokes Judge Henry Friendly’s classic article, Is Innocence Irrelevant' Collateral Attack on Criminal Judgments, to suggest that the writ of habeas corpus should be expanded to allow federal courts to review the petitions of state prisoners who allege their actual innocence without otherwise identifying any violation of federal law in securing their convictions. But that thesis cannot be squared with the proposal Judge Friendly championed in his article. Nor is it consistent with the limited jurisdiction of the federal courts. And Judge Wood’s essay fails to make the case for how her proposed expansion of the writ would work or whether it would even likely result in the grant of relief to a substantial number of prisoners whose innocence would otherwise go undetected. If anything, Judge Friendly’s case for restricting the writ remains compelling though unfulfilled.
      PubDate: Fri, 19 Jun 2020 08:21:08 PDT
       
  • The Enduring Challenges for Habeas Corpus

    • Authors: Diane P. Wood
      Abstract: 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 collateral review get it, and those that do not are more clearly identified from the outset and quickly dismissed. This is the goal that Judge Friendly set for himself in his article, but unfortunately it is not one that we have yet attained. Whether that is because of flaws in his suggestions, or failures to adopt them, is the subject of this Article. The answer, I suggest, is a little of both: some of his suggestions need further refinement, and others simply need to be implemented more vigorously. In the end, a remarkable number of Judge Friendly’s observations still apply to today’s writ, and thus many of his prescriptions remain well worth legislative attention.
      PubDate: Fri, 19 Jun 2020 08:20:56 PDT
       
 
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