Notre Dame Law Review

Articles from Vol. 87, No. 5, June

A Decade of Reversal: The Ninth Circuit's Record in the Supreme Court through October Term 2010
Thank you for inviting me to speak with you today. Reflecting on the beginning of another Supreme Court term next month, I thought I would take the opportunity to reflect on how cases from my own court have fared over the past decade. I would...
Are Charters Enough Choice? School Choice and the Future of Catholic Schools
INTRODUCTION I. CATHOLIC SCHOOLS, CHARTER SCHOOLS, AND THE "CONVERSION" DEBATE A. Catholic Schools B. Charter Schools C. "Religious" Charter Schools and the "Conversion" Debate II. CHARTERS ARE NOT ENOUGH CHOICE A. The Charter-Choice...
A Soldier's-Eye View of the Homefront: Examining Domestic Military Laws through the Lens of Military Doctrine
INTRODUCTION The military's domestic law enforcement role creates intense debate over United States law and policy. Some scholars argue for only limited use and strict control over domestic use of force and military law enforcement, arguing that...
Bringing the Market to Students: School Choice and Vocational Education in the Twenty-First Century
[T]he very best service which any one can render to what is called the higher education is to teach the present generation to provide a material or industrial foundation. On such a foundation as this will grow habits of thrift, a love of work, economy,...
Enforcement in Kind: Reexamining the Preemption Doctrine
INTRODUCTION In early 1995, a fight broke out between Cesar Herante, Guillermo Escobedo, and Justin Younie in Hawarden, Iowa. Younie was killed following a series of stab wounds from Herante and Escobedo. (1) Younie's death "in the small Iowa town...
Generation C: Childhood, Code, and Creativity
A. Goffman and the "Digital Native" Child development does not happen in a vacuum. As I have argued elsewhere, (120) the correct paradigm for conceptualizing human development is an ecological and contextualist one in line with the theory of Vygotsky,...
Keynote Address: Educational Innovation and the Law
Thank you. Thank you all very much. I want to thank the dean for the introduction and the welcome to Notre Dame. It's great for me to be here; it's great for our family to come and spend time with all of you. Before I get going, I would be remiss...
Law and Policy Entrepreneurs: Empirical Evidence on the Expansion of School Choice Policy
This study leverages event history analysis to help explain the expansion of public charter school legislation between 1991-2006. This study expands previous work in two important ways. First, while critical distinctions separate public charter school...
Multilingualism and Multiculturalism: Transatlantic Discourses on Language, Identity, and Immigrant Schooling
INTRODUCTION In September 2010, an eye-catching article appeared on the front page of the New York Times "Arts" section. The headline read, "Cultures United to Honor Separatism." (1) Basque and Catalan nationalists, Sinn Fein leaders, and others...
"Resolution VI": The Virginia Plan and Authority to Resolve Collective Action Problems under Article I, Section 8
American courts have traditionally followed the general principle of limited enumerated federal power in determining the scope of national authority. Recently, however, a group of influential constitutional scholars such as Jack Balkin, Robert Cooter,...
The Case for Educational Federalism: Protecting Educational Policy from the National Government's Diseconomies of Scale
There have been reform committees of fifty, of sixty, of seventy, of one hundred and all sorts of numbers that started out to do up the regular political Organizations. They were mornin' glories--looked lovely in the mornin' and withered up in a short...
The Federal Role in School Reform: Obama's "Race to the Top"
INTRODUCTION I. ESEA AND THE EVOLVING FEDERAL ROLE II. NO CHILD LEFT BEHIND III. THE OBAMA AGENDA IV. ASSESSING RTT A. Testing and Standards B. Evaluating Teachers C. Turning Around Failing Schools D. Charters and Choice V. REVISITING...
The HHS Contraception Mandate vs. the Religious Freedom Restoration Act
INTRODUCTION In mid-January 2012, in its ruling in Hosanna-Tabor Evangelical Lutheran Church v. Equal Employment Opportunity Commission, (1) the Supreme Court unanimously rejected the Obama administration's position that the Constitution does not...
The Parental Choice Fallacy in Education Reform Debates
INTRODUCTION Some tout parental school choice as a strategy for promoting, among other school-related goods, educational innovation. (1) This Article offers clarifying and skeptical thoughts about that position. It first explains what "educational...
The (Un)foreseen Effects of Abrogating Proximate Causation in CSX Transportation, Inc. V. McBride: The New Role of Foreseeability under FELA and the Jones Act
INTRODUCTION Every year at law schools across the country, first-year law students grapple with the famous debate between Benjamin N. Cardozo and William S. Andrews contained in Palsgraf v. Long Island Railroad Co. (1) The case is especially useful...
What Happens to the "Bad Apples": An Empirical Study of Suspensions in New York City Schools
INTRODUCTION The current study grows out of earlier research--conducted by one of us (with a collaborator) and published in book form (1) in 2006--on the following problem: In many public programs that seek to improve social conditions and increase...