Law Commons^™

To Stay Or Not To Stay: Competing Motions In The Shadow Of Multidistrict Litigation, Emily M. Dowling

Notre Dame Law Review

This Note proceeds in three parts. Part I provides a basic overview of the inherent power, with an emphasis on the interaction between inherent power and jurisdiction. In Part II, it reintroduces the Opioid outcome and describes the mechanisms producing it by summarizing district courts’ varied approaches to resolving competing motions to remand or stay. In Part III, it identifies the flaws of those approaches and proposes an alternative solution, applying jurisdictional resequencing doctrine to the ordering inquiry and concluding that the remand must go first.

Brief Of Amicus Curiae Notre Dame Law School Religious Liberty Initiative In Support Of Petitioner, Nicole Stelle Garnett, Richard W. Garnett Iv, Francesca Genova Matozzo, Steven A. Engel, Michael H. Mcginley

Court Briefs

No. 21-418
Joseph A. Kennedy v. Bremerton School District

On Writ of Certiorari to the United States Court of Appeals for the Ninth Circuit

From the Summary of Argument

This case offers the Court a much-needed opportunity to resolve the longstanding confusion caused by its conflicting and erroneous interpretations of the Establishment Clause. Although recent decisions clarify that the government may not suppress private religious expression, the Court has yet to clear away an undergrowth of older precedents that are often read to suggest the opposite. Rather than permit those outdated decisions to persist and perpetuate confusion, the Court should …

Brief Of Amici Curiae Christian Medical & Dental Associations And Coptic Medical Association Of North America In Support Of Defendants' Motions To Dismiss, John A. Meiser, Francesca M. Genova, Christopher J. Schweickert

Court Briefs

No. 3:21-cv-06654-VC
Lonny Shavelson v. California Department of Health Care Services

From the Argument

Whether and to what extent doctors should be allowed to participate in intentionally ending the lives of their patients is one of the most important questions in public bioethics. The vast majority of states allow no physician participation at all. California is one of nine states that have passed laws allowing physicians to “assist” a patient’s suicide by making lethal drugs available. But each stops there. No state allows what the plaintiffs in this case now demand: that doctors be allowed to actively euthanize patients by …

Alleged Violations Of The 1955 Treaty Of Amity, Economic Relations, And Consular Rights (Iran V. U.S.) (Judgment On Preliminary Objections) (I.C.J.), Diane A. Desierto

Journal Articles

On February 3, 2021, the International Court of Justice delivered its judgment on preliminary objections in Alleged Violations of the 1955 Treaty of Amity, Economic Relations, and Consular Rights (Islamic Republic of Iran v. United States of America). The judgment rejected all of the United States’ preliminary objections, declared the admissibility of Iran's Application, and held that the Court has jurisdiction “on the basis of Article XXI, paragraph 2 of the Treaty of Amity, Economic Relations, and Consular Rights of 1955.”

Brief Of Amicus Curiae Notre Dame Law School Religious Liberty Initiative In Support Of Petitioners, Nicole Stelle Garnett, Richard W. Garnett Iv, John A. Meiser, Steven A. Engel, Michael H. Mcginley, Eric D. Hageman, Justin M. Romeo, Lincoln Davis Wilson

Court Briefs

No. 20-1800
Harold Shurtleff v. City of Boston

On Writ of Certiorari to the United States Court of Appeals for the First Circuit

From the Summary of Argument

Invoking the specious rationale of “government speech,” the City of Boston unconstitutionally singled out religious expression for hostile treatment. By lumping speech based on “religion” together with speech deemed “inappropriate,” “offensive,” “discrimin[atory],” or “prejudice[d],” Pet.App.20, the City adopted the increasingly common view that promoting our Nation’s vibrant pluralism requires the exclusion of religious perspectives from the public square. But that view is antithetical to the Founders’ conception of religion as central—not peripheral—to …

Brief For The Partnership For Inner-City Education, Council Of Islamic Schools In North America, And National Council Of Young Israel As Amici Curiae In Support Of Petitioners, Nicole Stelle Garnett, Richard W. Garnett Iv, John A. Meiser, Michael H. Mcginley

Court Briefs

No. 20-1088
David and Amy Carson v. A. Pender Makin

On Writ of Certiorari to the United States Court of Appeals for the First Circuit

From the Summary of Argument

This Court should reverse the decision below and hold that the First Amendment permits no distinction between discrimination against religious groups based on their religious status and discrimination based on their religious use of generally available state benefits.

Brief Of Amici Curiae Benedictine College And Franciscan University Of Steubenville In Support Of Petitioners, Richard W. Garnett Iv, Nicole Stelle Garnett, John A. Meiser

Court Briefs

No. 21-145
Gordon College v. Margaret DeWeese-Boyd

On Petition for Writ of Certiorari to the Supreme Judicial Court of Massachusetts

From the Summary of Argument

This Court should grant certiorari to make clear that the First Amendment guarantees religious colleges and universities the same vital protections that safeguard a religious grade school’s freedom to select the teachers who personify and teach its faith. Despite this Court’s recent admonition that such protections apply to a religious school’s selection of “any ‘employee’ . . . who serves as a messenger or teacher of its faith,” Our Lady of Guadalupe Sch. v. …

Brief For Amici Curiae Andrea K. Bjorklund, Diane Desierto, And Franco Ferrari In Support Of Petitioners-Appellants And Reversal, James E. Berger, Charlene C. Sun, Diane Desierto, Anread K. Bjorklund, Franco Ferrari

Court Briefs

No Date for Oral Argument Has Been Set

No. 20-7113
Hulley Enterprises Ltd. v. Russian Federation

On appeal from the United States District Court for the District of Columbia, No. 14-1996 (BAH)

From the Summary of the Argument

Staying enforcement of an arbitral award pending a decision by a court in the place of arbitration is unusual; staying enforcement of an arbitral award for more than six years is almost unheard-of.⁶ The continued stay of proceedings in this case ignores the fact that arbitral awards are presumptively enforceable; non-enforcement is the exception rather than the rule.

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⁶ See …

June Medical And The Marks Rule, Owen P. Toepfer

Notre Dame Law Review

This Note, proceeding in three parts, describes the history of the Court’s abortion jurisprudence, evaluates the current state of the Marks rule, and demonstrates that Chief Justice Roberts’s concurrence in June Medical is the controlling opinion for Marks purposes under each definition of “narrowest” that several federal circuit courts of appeals employ. Part I first traces the historical arc of abortion jurisprudence from Roe v. Wade to June Medical and thereafter provides background on the history of and academic reactions to the Marks rule. Part II considers the various approaches to the Marks rule taken by the several federal circuits …

Amicus Brief Of The National Congress Of American Indians, A Tribal Elder, And Other Federal Indian Law Scholars And Organizations, Michalyn Steele, Stephanie Hall Barclay

Court Briefs

No. 21-15295
Apache Stronghold v. United States of America

Appeal from the United States District Court for the District of Arizona, Honorable Steven P. Logan (2:21-cv-00050-PHX-SPL)

From the Summary of the Argument

Meaningful access to sacred sites is a necessary part of the religious exercise of many Indigenous peoples. But tribes have been repeatedly denied such access by the federal government, and thus repeatedly thwarted in their efforts to engage in these important religious practices. In many instances, that access has been irrevocably denied and those efforts permanently thwarted by the total destruction of Indigenous sacred sites. Indeed, the colonial, …

Brief For Council Of Islamic Schools In North America, Partnership For Inner-City Education, And Union Of Orthodox Jewish Congregations Of America As Amici Curiae In Support Of Petitioners, Nicole Stelle Garnett, Richard W. Garnett Iv, Michael H. Mcginley

Court Briefs

No. 20-1088
David and Amy Carson v. A. Pender Makin

On Petition for Writ of Certiorari to the United States Court of Appeals for the First Circuit

From the Summary of Argument

This Court should grant certiorari in order to clarify that any discrimination on the basis of religious status or religious use is subject to “the most exacting scrutiny.” Trinity Lutheran Church of Columbia, Inc. v. Comer, 137 S. Ct. 2012, 2021 (2017).

The High Cost Of Eviction: Struggling To Contain A Growing Social Problem, Judith Fox

Journal Articles

Matthew Desmond’s Pulitzer Prize winning book, focused public attention on the issue of eviction. As a result, scholars have begun to investigate and challenge some of the assumptions made in the book. Primarily, is eviction the cause of poverty or one of its consequences? This article explores several options in an attempt to explain the high number of evictions in America. These include, among others, the lack of affordable housing, failed governmental policies, the rise of institutional landlords and the role of courts. The article highlights some interventions that have begun to show progress in easing the burden of eviction. …

The Double Standard For Third-Party Standing: June Medical And The Continuation Of Disparate Standing Doctrine, Brandon L. Winchel

Notre Dame Law Review

No jurisdictional principle is more fundamental to the federal judiciary than the doctrine of standing. Before litigants may avail themselves of the tremendous power vested in the federal judiciary, plaintiffs must first establish that they are appropriately situated to assert a legal claim before a court. In analyzing whether a plaintiff possesses the requisite standing to maintain a legal challenge, the Supreme Court has stressed that a court’s analysis must be blind to the underlying dispute: “The fundamental aspect of standing is that it focuses on the party seeking to get his complaint before a federal court and not on …

The Remand Power And The Supreme Court's Role, Aaron-Andrew P. Bruhl

Notre Dame Law Review

“Reversed and remanded.” Or “vacated and remanded.” These familiar words, often found at the end of an appellate decision, emphasize that an appellate court’s conclusion that the lower court erred generally does not end the litigation. The power to remand for further proceedings rather than wrap up a case is useful for appellate courts because they may lack the institutional competence to bring the case to a final resolution (as when new factual findings are necessary) or lack an interest in the fact-specific work of applying a newly announced legal standard to the particular circumstances at hand. The modern Supreme …

Brief Of The Muslim Public Affairs Council, Religious Freedom Institute's Islam And Religious Freedom Action Team, And Asma Uddin, Stephanie Barclay

Court Briefs

No. 20-A90
Agudath Israel of America v. Andrew M. Cuomo

Including the Motion for Leave to File Amicus Curiae Brief in Support of Applicant by the Muslim Public Affairs Council, Religious Freedom Institute's Islam and Religious Freedom Action Team, and Asma Uddin (i–iii).

From the Summary of Argument

Since ancient times, peoples around the world have symbolically vested the perceived wrongdoings of their community onto “scapegoats,” who are sacrificed in the hope that those wrongdoings will be expiated, and the hard times will pass. Too often, religious minorities have served as scapegoats in times of sickness, war, and fear—from Jews …

Brief Amicus Curiae Of The Muslim Public Affairs Council, Religious Freedom Institute's Islam And Religious Freedom Action Team, And Asma Uddin In Support Of Plaintiffs-Appellants And Reversal, Stephanie Barclay

Court Briefs

No. 20-3572-CV
Agudath Israel of America v. Andrew M. Cuomo

On appeal from the United States District Court for the Eastern District of New York, No. 1:20-cv-04834-KAM

From the Argument:

Since ancient times, peoples around the world have symbolically vested the perceived wrongdoings of their community onto “scapegoats,” who are sacrificed in the hope that those wrongdoings will be expiated, and the hard times will pass. Too often, religious minorities have served as scapegoats in times of sickness, war, and fear—from Jews during the Black Death, to Jehovah’s Witnesses During WWII, to Muslims after 9/11. Latest in a long and …

Brief Of The Muslim Public Affairs Council, Religious Freedom Institute's Islam And Religious Freedom Action Team, And Asma Uddin As Amicus Curiae In Support Of Plaintiffs, Stephanie H. Barclay

Court Briefs

No. 1:20-cv-01284-GLS-DJS, Hon. Gary L. Sharpe
Yitzchok Lebovits v. Andrew M. Cuomo

From the Summary of Argument

Since ancient times, peoples around the world have symbolically vested the perceived wrongdoings of their community onto “scapegoats,” who are sacrificed in the hope that those wrongdoings will be expiated, and the hard times will pass. Too often, religious minorities have served as scapegoats in times of sickness, war, and fear— from Jews during the Black Death, to Jehovah’s Witnesses During WWII, to Muslims after 9/11. Latest in a long and troubling line of such incidents are the statements and policies of Governor …

The Meaning Of Federalism In A System Of Interstate Commerce: Free Trade Among The Several States, Donald J. Kochan

Notre Dame Law Review Reflection

As states become dissatisfied with either the direction of federal policy or the

gridlock that seems like a barrier frustrating action, their disdain or impatience is

increasingly manifest in state legislative or regulatory efforts to reach big issues

normally reserved to federal resolution. Increasingly, such efforts to stake a position

on issues of national or international importance are testing the limits of state

autonomy within a system of federalism that includes robust protection for the free

flow of commerce among the several states.

This Essay provides the primary historical backdrop against which these

measures should be judged with a particular …

Reconsidering Wrongful Birth, Luke Isaac Haqq

Notre Dame Law Review Reflection

The tort action for “wrongful birth” has a history dating back at least to the

1960s, when it emerged along with the claims for “wrongful life” and “wrongful

conception.” Since their incipience, this trio of lawsuits has generated an expansive

commentary, reaching into thousands of articles in the legal literature alone. With a

divide among federal circuits on wrongful birth only beginning to gain visibility with

Doherty v. Merck & Co. in 2018 and Zelt v. Xytex Corp. in 2019, the wrongful

birth claim could potentially provide a site for the Supreme Court to revisit national

abortion policy.

The …

The Great Writ And Federal Courts: Judge Wood's Solution In Search Of A Problem, William H. Pryor Jr.

Notre Dame Law Review

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 …

Certification Comes Of Age: Reflections On The Past, Present, And Future Of Cooperative Judicial Federalism, Kenneth F. Ripple, Kari Anne Gallagher

Notre Dame Law Review

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 …

Only Where Justified: Toward Limits And Explanatory Requirements For Nationwide Injunctions, Milan D. Smith Jr.

Notre Dame Law Review

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 …

Toward A More Apparent Approach To Considering The Admission Of Expert Testimony, Thomas D. Schroeder

Notre Dame Law Review

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.

A Survivor's Perspective: Federal Judicial Selection From George Bush To Donald Trump, Leslie H. Southwick

Notre Dame Law Review

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 …

A Workable Substantive Due Process, Timothy M. Tymkovich, Joshua Dos Santos, Joshua J. Craddock

Notre Dame Law Review

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. …

Stare Decisis And The Supreme Court(S): What States Can Learn From Gamble, Zachary B. Pohlman

Notre Dame Law Review

While almost all questions before the Supreme Court require statutory or constitutional interpretation, state courts of last resort occupy a unique place in the American judicial landscape. As common-law courts, state supreme courts are empowered to develop common-law doctrines in addition to interpreting democratically enacted texts. This Note argues that these two distinct state court functions—interpretation of statutes and constitutions, and common-law judging—call for two distinct approaches to stare decisis, a distinction that is often muddied in practice. Justice Thomas’s concurrence in Gamble v. United States provides the framework for each approach, a framework based on the genesis and development …

Are Collateral Consequences Deserved?, Brian M. Murray

Notre Dame Law Review

While bipartisan passage of the First Step Act and state reforms like it will lead to changes in sentencing and release practices, they do little to combat the collateral consequences that exoffenders face upon release. Because collateral consequences involve the state’s infliction of serious harm on those who have been convicted or simply arrested, their existence requires justification. Many scholars classify them as punishment, but modern courts generally diverge, deferring to legislative labels that classify them as civil, regulatory measures. This label avoids having to address existing constitutional and legal constraints on punishment. This Article argues that although collateral consequences …

Fiduciary Injury And Citizen Enforcement Of The Emoluments Clause, Meredith M. Render

Notre Dame Law Review

The text of the Emoluments Clause provides no explicit enforcement mechanism, raising questions about who may enforce the Clause, and the mechanism by which it might be enforced. Is the Clause enforceable exclusively by collective action—such as an impeachment proceeding by Congress—or is it also enforceable by individual action—such as a private lawsuit? If the Emoluments Clause can be enforced by private action, who has standing to sue? In the absence of explicit textual guidance, a broader constitutional theory is required to render enforcement of the Clause coherent.

This Article presents that broader theory. The Article argues that the Emoluments …

Into The Weeds: Modern Discrimination Law, Sandra F. Sperino

Notre Dame Law Review

Since the 1970s, the federal courts have created a number of frameworks to analyze discrimination claims. Each framework provides a roadmap for proving a certain theory of discrimination. Over time, the courts have added bells and whistles to these basic roadmaps. These court-created ancillary doctrines or subdoctrines require an ever-increasing amount of judicial attention.

While legal scholars have challenged the ancillary doctrines individually, this Article examines them collectively. When viewed collectively, it is easier to see how the system of creating and using ancillary doctrines is significantly flawed. Any benefits that derive from it are outweighed by its problems.

This …

The Judicial Reforms Of 1937, Barry Cushman

Journal Articles

The literature on reform of the federal courts in 1937 understandably focuses on the history and consequences of President Franklin D. Roosevelt’s ill-fated proposal to increase the membership of the Supreme Court. A series of decisions declaring various components of the New Deal unconstitutional had persuaded Roosevelt and some of his advisors that the best way out of the impasse was to enlarge the number of justiceships and to appoint to the new positions jurists who would be “dependable” supporters of the Administration’s program. Yet Roosevelt and congressional Democrats also were deeply troubled by what they perceived as judicial obstruction …