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We The People: Juries, Not Judges, Should Be The Gatekeepers Of Expert Evidence, Krista M. Pikus

Notre Dame Law Review

This Note urges restoration of the proper balance of power between judges and juries regarding expert evidence. Our justice system has steadily moved away from letting juries decide important questions of fact and toward putting the decisionmaking power into the hands of judges. The recent developments in evidence law, requiring judges to act as the “gatekeepers” of expert evidence, present significant obstacles for plaintiffs attempting to get cases to a jury. This newer standard in expert evidence is a violation of the foundational precept in American jurisprudence that the people should be the sovereign, not the judge.

Procedural Rights At Sentencing, Carissa Byrne Hessick, F. Andrew Hessick

Notre Dame Law Review

In determining which constitutional procedural rights apply at sentencing, courts have distinguished between mandatory and discretionary sentencing systems. For mandatory systems—systems that limit sentencing factors and specify particular punishments based on particular facts—defendants enjoy important rights including the right to a jury, the right to proof beyond a reasonable doubt, the right to notice of potential sentencing aggravators, and the right not to be sentenced based on ex post facto laws. By contrast, for discretionary systems—systems that leave the determination of sentencing factors and how much punishment to impose based on particular facts to the judge’s discretion—defendants do not enjoy …

Labor In Faith: A Comparative Analysis Of Hosanna-Tabor V. Eeoc Through The European Court Of Human Rights' Religious Employer Jurisprudence, Francesca M. Genova

Notre Dame Law Review

This Note uses the European Court of Human Rights’ framework to analyze the Supreme Court’s decision in Hosanna-Tabor v. Equal Employment Opportunity Commission, which recognizes a “ministerial exception” for religious organizations as a defense to certain employment claims. It argues that the unanimous Supreme Court in Hosanna-Tabor examines factors similar to those of its European counterpart, but protects religious liberties more robustly by avoiding some of the European Court’s preoccupations. Yet, the European Court’s assessment anticipates the difficulties of applying the “ministerial exception” in future cases.

The Decline Of Legal Classicism And The Evolution Of New Deal Constitutionalism, Samuel R. Olken

Notre Dame Law Review

This Article explores how some of the salient characteristics of classical legal thought influenced the evolution of the Supreme Court’s constitutional jurisprudence during the New Deal era. It focuses upon the Court’s jurisprudence of economic liberty in the context of substantive due process. Though a similar pattern of evolution occurred in the Court’s Commerce Clause jurisprudence, examination of this area of constitutional development is beyond the scope of this Article. Part I provides an overview of legal classicism and its influence upon late nineteenth and early twentieth-century constitutional law. The next Part examines the paradox of legal classicism and its …

The Cost Of Judicial Error: Stare Decisis And The Role Of Normative Theory, Kurt T. Lash

Notre Dame Law Review

The Supreme Court of the United States has long embraced the doctrine of stare decisis as an appropriate consideration any time the Court considers overruling past precedent. However, because the Court's actual application of the doctrine has been both sporadic and seemingly inconsistent, some scholars (and Justices) have accused the Court of methodological hypocrisy and bad faith. Much of this criticism assumes that, if members of the Supreme Court find certain rule of law values dispositive in one case, they should find those same considerations dispositive in all cases. Failure to do so suggests either incompetence or insincerity. This Article …

Resolving The Hate Crimes/Hate Speech Paradox: Punching Bias Crimes And Protecting Racist Speech, Frederick M. Lawrence

Notre Dame Law Review

No abstract provided.

Federal Power To The Rescue: The Use Of 1985 (3) Against Anti-Abortion Protestors, David A. Gardey

Notre Dame Law Review

No abstract provided.

Adversary Cecesses In The American Criminal Trial, Gordon Van Kessel

Notre Dame Law Review

No abstract provided.

Post-Lecture Discussion, Henry J. Steiner

Notre Dame Law Review

No abstract provided.

Ideals And Counter-Ideals In The Struggle Over Autonomy Regimes For Minorities, Henry J. Steiner

Notre Dame Law Review

No abstract provided.

Sovereign God, Sovereign State, Sovereign Self, Jean Bethke Elshtain

Notre Dame Law Review

No abstract provided.

Advocacy Education: The Case For Structural Knowledge, Steven Lubet

Notre Dame Law Review

No abstract provided.

Affirmative Action After The Civil Rights Act Of 1991: The Effects Of A Neutral Statute, Glen D. Nager

Notre Dame Law Review

No abstract provided.

Litigation Of A Sexual Harassment Case After The Civil Rights Act Of 1991, Marian C. Haney

Notre Dame Law Review

No abstract provided.

The 1991 Civil Rights Act: A Constitutional, Statutory, And Philosophical Enigma, Douglas W. Kmiec

Notre Dame Law Review

No abstract provided.

Freedom's Politics: A Review Essay Of Ronald Dworkin's Freedom's Law: The Moral Reading Of The American Constitution, Gregory Bassham

Notre Dame Law Review

No abstract provided.

Roundtable: Supreme Courts As Sources Of Legal Change, Randall T. Shepard, Shirley S. Abrahamson, Robert Benham, Perry O. Hooper Sr.

Notre Dame Law Review

No abstract provided.

Between Pretext Only And Pretext Plus: Understanding St. Mary's Honor Center V. Hicks And Its Application To Summary Judgment, Jody H. Odell

Notre Dame Law Review

No abstract provided.

Proposal For Regulating Hate Speech In The United States: Balancing Rights Under The International Covenant On Civil And Political Rights, Scott J. Catlin

Notre Dame Law Review

No abstract provided.

Resisting Rulemaking: Challenging The Montana Settlement's Title Ix Sexual Harassment Blueprint, Katie Jo Baumgardner

Notre Dame Law Review

Every university and college across the nation—with the exception of three—accepts federal financial assistance. Consequently, in the world of higher education, the impact of administrative regulation and compliance that accompanies federal funding cannot be overstated. Title IX of the Education Amendments of 1972 prohibits discrimination on the basis of sex in education programs or activities operated by recipients of federal financial assistance. The text of Title IX states that “[n]o person in the United States shall, on the basis of sex, be excluded from participation in, be denied the benefits of, or be subjected to discrimination under any education program …

For The Sake Of The Children: Recapturing The Meaning Of Marriage, Katherine Shaw Spaht

Notre Dame Law Review

No abstract provided.

Church, State, And International Human Rights: A Theological Appraisal, David M. Smolin

Notre Dame Law Review

No abstract provided.

Lawyers, Clients, And Mediation, Jacqueline M. Nolan-Haley

Notre Dame Law Review

No abstract provided.

On The Danger Of Allowing Marital Fault To Re-Emerge In The Guise Of Torts, Harry D. Krause

Notre Dame Law Review

No abstract provided.

Illusion Of Suffrage: Female Voting Rights And The Women's Poll Tax Repeal Movement After The Nineteenth Amendment, Ronnie L. Podolefsky

Notre Dame Law Review

No abstract provided.

Christian Jurisprudence Of Robert E. Rodes Jr., Thomas L. Shaffer

Notre Dame Law Review

No abstract provided.

Online Terms Of Service: A Shield For First Amendment Scrutiny Of Government Action, Jacquelyn E. Fradette

Notre Dame Law Review

Part I of this Note will canvas popular opinions and perceptions about First Amendment rights on the Internet using examples of public outcry over recent instances of speech limitation. It will also discuss the state action doctrine generally and how the presence of this doctrine most likely renders certain popular public constitutional intuitions about the First Amendment erroneous.

Part II will provide an overview of how courts have taken an expansive and protective view of private ordering between online parties. It will discuss how courts have developed a robust freedom to contract jurisprudence in the Internet context. Because courts essentially …

Tyranny By Proxy: State Action And The Private Use Of Deadly Force, John L. Watts

Notre Dame Law Review

The Article begins in Part I with a discussion of the Supreme Court’s opinion and holding in Tennessee v. Garner. It then describes the continuing application of the fleeing felon rule to private actors despite the Court’s holding in Garner.

Part II describes the state action doctrine, examines its history, and clarifies its purpose. It explains why the Court’s early focus on enhancing individual autonomy and federalism as the purpose of the state action doctrine was only partially correct. In fact, the doctrine enhances many of the familiar constitutional strategies for the prevention of tyranny including: separation of powers, democratic …

Policing The Firm, D. Daniel Sokol

Notre Dame Law Review

No abstract provided.