Notre Dame Law Review最新文献

{"title":"Fashion's Function in Intellectual Property Law","authors":"Christopher Buccafusco, Jeanne Fromer","doi":"10.2139/SSRN.2826201","DOIUrl":"https://doi.org/10.2139/SSRN.2826201","url":null,"abstract":"Clothing designs can be beautiful. But they are also functional. Fashion’s dual nature sits uneasily in intellectual property law, and its treatment by copyright, trademark, and design patent laws has often been perplexing. Much of this difficulty arises from an unclear understanding of the nature of functionality in fashion design. This Article proposes a robust account of fashion’s function. It argues that aspects of garment designs are functional not only when they affect the physical or technological performance of a garment but also when they affect the perception of the wearer’s body. Clothes are not designed or chosen simply to look good. They are also designed or chosen to look good on. This approach clarifies the appropriate treatment of fashion design in intellectual property, and it offers a solution to Star Athletica, LLC v. Varsity Brands Inc., the copyright case now pending before the U.S. Supreme Court.","PeriodicalId":47176,"journal":{"name":"Notre Dame Law Review","volume":"48 1","pages":"51"},"PeriodicalIF":0.9,"publicationDate":"2016-08-18","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"72824302","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":3,"RegionCategory":"社会学","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}

{"title":"Law Enforcement as Political Question","authors":"Zachary S. Price","doi":"10.2139/SSRN.2572637","DOIUrl":"https://doi.org/10.2139/SSRN.2572637","url":null,"abstract":"Across a range of contexts, federal courts have crafted doctrines that limit judicial second guessing of executive nonenforcement decisions. Key case law, however, carries important ambiguities of scope and rationale. In particular, key decisions have combined rationales rooted in executive prerogative with concerns about nonenforcement’s “unsuitability” for judicial resolution. With one nonenforcement initiative now before the Supreme Court and other related issues percolating in lower courts, this Article makes the case for the latter rationale. Judicial review of nonenforcement, on this account, involves a form of political question, in the sense of the “political question doctrine”: while executive officials hold a basic statutory and constitutional obligation to faithfully execute regulatory statutes, that obligation is subject to incomplete judicial enforcement because structural constitutional considerations place a gap between executive duties and judicial enforcement of those duties. What is more, the twin prongs of the modern political question doctrine — “textual assignment” and “judicial manageability” — usefully describe the gap between executive obligation and judicial power. Bringing enforcement suits and prosecutions in particular cases is a textually assigned function of the executive branch, while the broader executive task of setting priorities for enforcement frequently presents a judicially unmanageable inquiry.This reframing may account descriptively for much of the current doctrine but also carries important normative implications. Among other things, the framework clarifies that judicial decisions may not fully define executive obligations with respect to enforcement; it helps identify contexts in which judicial review may be appropriate, including with respect to current immigration programs before the Supreme Court and the controversial prosecutorial practice of entering “deferred prosecution agreements” in white-collar criminal cases; and it reinforces longstanding arguments for a more flexible doctrine of Article III standing.","PeriodicalId":47176,"journal":{"name":"Notre Dame Law Review","volume":"68 1","pages":"1571"},"PeriodicalIF":0.9,"publicationDate":"2016-06-11","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"89514254","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":3,"RegionCategory":"社会学","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}

{"title":"Through the Looking Glass in Indiana: Mandatory Reporting of Child Abuse and the Duty of Confidentiality","authors":"A. Bernabé","doi":"10.2139/ssrn.2770884","DOIUrl":"https://doi.org/10.2139/ssrn.2770884","url":null,"abstract":"It is often said that the duty of confidentiality is the most important of all the fiduciary duties attorneys owe their clients. This is so because without confidentiality, clients would presumably not feel free to seek legal representation, or, at least, would not be fully open to speak out with their lawyers. Yet, the duty of confidentiality can be affected by special statutes that impose the opposite duty: a duty to disclose information under certain circumstances. Most common among this type of statutes are state statutes that mandate disclosure of information related to child abuse. As one might expect, therefore, there may be circumstances in which a lawyer may find a conflict between the duty to keep information secret and a duty to disclose it. Last fall, the Legal Ethics Committee of the Indiana State Bar Association issued an opinion addressing this very question. It concludes that under Indiana law, absent client consent, an attorney may not report information about suspected child abuse learned during the representation of the client unless the lawyer believes disclosing the information is necessary to prevent reasonably certain death or substantial bodily harm. In reaching this conclusion, however, the Committee disregards the text of the applicable rule of professional conduct and does not consider the possible scenarios that can result from the interpretation of the mandatory disclosure statute, the doctrine of the attorney-client privilege and the rules of professional conduct. In an effort to clarify the confusion created by the opinion, this essay explains the issue presented by the opinion, and suggests the analysis needed for its proper resolution according to the applicable rules of professional conduct.","PeriodicalId":47176,"journal":{"name":"Notre Dame Law Review","volume":"1 1","pages":"22"},"PeriodicalIF":0.9,"publicationDate":"2016-04-26","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"89466484","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":3,"RegionCategory":"社会学","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}

{"title":"THE YEARNING FEED","authors":"","doi":"10.2307/jj.21995724.5","DOIUrl":"https://doi.org/10.2307/jj.21995724.5","url":null,"abstract":"","PeriodicalId":47176,"journal":{"name":"Notre Dame Law Review","volume":"1 1","pages":"5-5"},"PeriodicalIF":0.0,"publicationDate":"2016-03-15","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"147910422","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":3,"RegionCategory":"社会学","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}

{"title":"A Non-Contentious Account of Article III's Domestic Relations Exception","authors":"James E. Pfander, Emily K. Damrau","doi":"10.2139/SSRN.2747767","DOIUrl":"https://doi.org/10.2139/SSRN.2747767","url":null,"abstract":"Scholars and jurists have long debated the origins and current scope of the so-called domestic relations exception to Article III. Rooted in the perception that certain family law matters lie beyond the power of the federal courts, the exception was first articulated in the nineteenth century decisional law of the Supreme Court and has perplexed observers ever since. Scholarly debate continues, despite the Court’s twentieth-century decision to place the exception firmly on statutory grounds in an effort to limit its potentially disruptive force.This Essay offers a novel, historically grounded account of the domestic relations exception, connecting its origins to the Article III distinction between “cases” and “controversies.” Much domestic relations law fails to present a “controversy” within the meaning of Article III; the consensual nature of many status-altering acts (marriage, consensual divorce, adoption) forecloses a federal dispute-resolution role. But when federal courts hear “cases” arising under federal law, they have full power to exercise both contentious and (what Roman and civil lawyers refer to as) non-contentious jurisdiction. Our non-contentious account explains a range of puzzles, including why Article III courts can issue decrees at the core of the domestic relations exception when the matter at hand implicates federal law.","PeriodicalId":47176,"journal":{"name":"Notre Dame Law Review","volume":"9 1","pages":"117-165"},"PeriodicalIF":0.9,"publicationDate":"2016-03-14","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"82692797","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":3,"RegionCategory":"社会学","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}

{"title":"The Meanings of the 'Privileges and Immunities of Citizens' on the Eve of the Civil War","authors":"David R. Upham","doi":"10.2139/ssrn.2107460","DOIUrl":"https://doi.org/10.2139/ssrn.2107460","url":null,"abstract":"This article presents important, largely-overlooked evidence concerning the antebellum understanding of the Privileges and Immunities Clause of Article IV, with an eye toward illuminating the Privileges or Immunities Clause of the Fourteenth Amendment.This article explains that from 1857 to 1861, in the course of prominent national political debates, three contrasting interpretations of the Privileges and Immunities Clause arose: (1) a pro-slavery absolute-rights reading adopted by southern Democrats and some northern Democrats; (2) an anti-slavery absolute-rights reading adopted by Republicans; and (3) a strictly interstate-equality reading held by some northern and border-state Democrats. The prominence, if not dominance, of the first two readings represented, in some respects, radical developments relative to the interpretations that had prevailed in the courts and political debates before 1857. These first two readings, at the same time, effectively marginalized the interstate-equality reading that still largely prevailed in the courts.This article concludes by noting the ways in which this evidence illuminates both the original understanding of the “privileges and immunities of citizens of the United States” secured by the Fourteenth Amendment, and the reason why the Fourteenth Amendment proved so vulnerable to judicial misconstruction.","PeriodicalId":47176,"journal":{"name":"Notre Dame Law Review","volume":"152 1","pages":"1117"},"PeriodicalIF":0.9,"publicationDate":"2016-03-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"76741126","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":3,"RegionCategory":"社会学","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}

{"title":"The Exceptional Role of Courts in the Constitutional Order","authors":"N. Barber, Adrian Vermeule","doi":"10.2139/SSRN.2734218","DOIUrl":"https://doi.org/10.2139/SSRN.2734218","url":null,"abstract":"We examine exceptional cases in which judges are called upon to pass judgment on the constitution itself. There are three groups of cases. First, in exceptional cases the validity of the constitution and the legal order is thrown into dispute. The court is asked to rule on the legitimacy of the constitution and, by derivation, on the standing of the court and the legal authority of the judge. Second, on some occasions the judge is asked to rule on the transition from one constitutional order to another. This can occur in the aftermath of a revolution, or when the state is acceding to a new constitutional order. Third, there are some cases in which the health of the constitutional order requires the judge to act not merely beyond the law, as it were, but actually contrary to the law. The judge must act contrary to the rules of the legal order, precisely in order to preserve the health of the legal order. We claim that \"constitutional decisionism\" is inevitable in all three groups of cases. Courts sometimes have no option but to take it upon themselves to rule upon, and indeed to participate in constituting, the validity of the very constitutional order that gives them their authority, in a kind of bootstrapping.","PeriodicalId":47176,"journal":{"name":"Notre Dame Law Review","volume":"19 1","pages":"817"},"PeriodicalIF":0.9,"publicationDate":"2016-02-18","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"73934303","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":3,"RegionCategory":"社会学","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}

{"title":"Penn Central Take Two","authors":"C. Serkin","doi":"10.2139/SSRN.2728417","DOIUrl":"https://doi.org/10.2139/SSRN.2728417","url":null,"abstract":"Penn Central v. New York is the most important regulatory takings case of all time. There, the Supreme Court upheld the historic preservation of Grand Central Terminal in part because the City offset the burden of the landmarking with a valuable new property interest — a transferable development right (TDR) — that could be sold to neighboring property. Extraordinarily, 1.2 million square feet of those very same TDRs, still unused for over 40 years, are the subject of new takings litigation. According to a newly filed complaint, the TDRs that saved Grand Central have themselves been taken by the government, which allegedly wiped out their value by permissively upzoning the neighboring property. The litigation is not only a captivating postscript to Penn Central, but also a compelling context for examining the category of regulatory property more generally. Regulatory property — like TDRs and pollution credits, for example — is increasingly important and valuable, but raises complicated trade-offs between the need for stability in property-based entitlements and policy flexibility in governance. This Essay ultimately argues that the creation of regulatory property should not prevent policy changes far into the future.","PeriodicalId":47176,"journal":{"name":"Notre Dame Law Review","volume":"18 1","pages":"913"},"PeriodicalIF":0.9,"publicationDate":"2016-02-05","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"86986181","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":3,"RegionCategory":"社会学","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}

{"title":"Prosecutorial Accountability 2.0","authors":"B. Green, Ellen Yaroshefsky","doi":"10.2139/SSRN.2722791","DOIUrl":"https://doi.org/10.2139/SSRN.2722791","url":null,"abstract":"This article examines prosecutors’ accountability for professional misconduct. It begins by identifying a significant evolution since the Warren Court era both in the rhetoric regarding prosecutorial misconduct and in how prosecutors are regulated. Prior to the information age, the public and the judiciary largely accepted prosecutors’ contention that prosecutorial misconduct should be narrowly conceived as intentional lawbreaking, and that isolated and aberrational instances of misconduct could be addressed by disciplining rogue prosecutors. In contrast, in the shift to “Prosecutorial Accountability 2.0,” increasing segments of the public and judiciary now accept that prosecutorial misconduct is systemic; it calls for systemic remedies; and it includes negligent wrongdoing, abuses of discretion, and failures of supervision. The article rejects suggestions that the rhetorical and regulatory changes occurred because prosecutorial misconduct has become more prevalent. It identifies other social causes: a public awakening to criminal justice problems for which prosecutors bear responsibility; revelations, in particular, regarding the role of prosecutorial misconduct in wrongful conviction cases; new social science understandings about social and psychological predicates for prosecutorial wrongdoing; and reform organizations’ inclusion of systemic prosecutorial reform on their agenda. The article shows how the internet has served as the essential catalyst for shifting public and judicial attitudes. The article concludes by predicting that the old and new approaches to prosecutorial accountability will coexist into the foreseeable future, and that the implications will include both a more active judicial role in critiquing and overseeing prosecutors and increased self-regulation by prosecutors’ offices.","PeriodicalId":47176,"journal":{"name":"Notre Dame Law Review","volume":"30 1","pages":"51"},"PeriodicalIF":0.9,"publicationDate":"2016-01-26","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"80951122","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":3,"RegionCategory":"社会学","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}

{"title":"DNA and Distrust","authors":"Kerry Abrams, Brandon L. Garrett","doi":"10.2139/SSRN.2473728","DOIUrl":"https://doi.org/10.2139/SSRN.2473728","url":null,"abstract":"Over the past three decades, government regulation and funding of DNA testing has reshaped the use of genetic evidence across various fields, including criminal law, family law, and employment law. Courts have struggled with questions of when and whether to treat genetic evidence as implicating individual rights, policy trade-offs, or federalism problems. We identify two modes of genetic testing: identification testing, used to establish a person’s identity, and predictive testing, which seeks to predict outcomes for a person. Judges and lawmakers have often drawn a bright line at predictive testing, while allowing uninhibited identity testing. The U.S. Supreme Court in Maryland v. King, for example, held that entering arrestee DNA in databanks does not implicate substantial Fourth Amendment concerns, since police do not test for genetic predispositions “not relevant to identity.” We argue that policy implications of genetic testing laws cannot be so neatly demarked. For example, federal welfare laws require states to use DNA to establish paternity to collect child support from “deadbeat dads,” which may be relevant to identity, but also creates potentially destabilizing effects on families. We explore how genetic testing has been legally regulated across a variety of fields. We identify two dominant modes of regulatory action dealing with genetics: data-driven and ethics-based. Data-driven legislation is ostensibly focused on short-term benefits of gathering a population’s genetic information. Ethics-based legislation, in contrast, is concerned with long-term consequences, such as effects on privacy. We particularly critique data-driven legislation, and we argue that judges, legislators and scholars should focus squarely on the individual and government interests at stake. We set out a list of five factors that legal actors should consider when considering genetics regulation: (1) equality, (2) accuracy, (3) privacy, (4) finality, and (5) federalism. In particular, equality concerns permeate the short history of DNA regulation. In each of the areas explored, comparatively disadvantaged groups such as arrestees, convicts, juveniles, noncitizens, and welfare recipients, have received the most intrusive regulation and collection of their genetic evidence, while comparatively privileged persons benefit from enhanced genetic privacy. We conclude that the regulation of genetic evidence deserves far more careful legal scrutiny, since the ways that genetic evidence is deployed can profoundly affect constitutional rights and the structure of legal and social institutions.","PeriodicalId":47176,"journal":{"name":"Notre Dame Law Review","volume":"12 1","pages":"757"},"PeriodicalIF":0.9,"publicationDate":"2016-01-20","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"82914275","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":3,"RegionCategory":"社会学","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}