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Full-Text Articles in Law

Law Library Guide 2016–2017, Kresge Law Library, Research & Teaching Team Jan 2106

Law Library Guide 2016–2017, Kresge Law Library, Research & Teaching Team

Law Library Guide

The Kresge Law Library Guide's informative content includes: library services, policies, and physical layout.


Mlb Calendar 2017-2018, Edmund P. Edmonds Jul 2017

Mlb Calendar 2017-2018, Edmund P. Edmonds

MLB Calendars

No abstract provided.


Keynote Address: Two Challenges For The Judge As Umpire: Statutory Ambiguity And Constitutional Exceptions, Brett M. Kavanaugh Jul 2017

Keynote Address: Two Challenges For The Judge As Umpire: Statutory Ambiguity And Constitutional Exceptions, Brett M. Kavanaugh

Notre Dame Law Review

Justice Scalia believed in the rule of law as a law of rules. He wanted judges to be umpires, which ordinarily entails judges applying a settled legal principle to a particular set of facts. I agree with that vision of the judiciary. But there are two major impediments in current jurisprudence to achieving that vision of the judge as umpire. The first is the ambiguity trigger in statutory interpretation. The second is the amorphous tests employed in cases involving claimed constitutional exceptions. We should identify and study these issues. Inspired by Justice Scalia’s longstanding efforts to improve the law ...


Beyond The Text: Justice Scalia's Originalism In Practice, Michael D. Ramsey Jul 2017

Beyond The Text: Justice Scalia's Originalism In Practice, Michael D. Ramsey

Notre Dame Law Review

This Essay considers the late Justice Antonin Scalia’s contributions to constitutional originalism as a practical methodology. Justice Scalia was the leading judicial theorist and advocate of originalism of his era, and his legacy has widely been assessed in those terms. He was also, along with Justice Clarence Thomas, the leading judicial practitioner of originalism of his era. This latter role has received less comprehensive attention. Although there are of course countless articles analyzing and critiquing his originalist methodology in particular cases, or seeking to demonstrate that certain of his opinions are inconsistent with his theoretical commitments, relatively few articles ...


Originalism And Stare Decisis, Amy Coney Barrett Jul 2017

Originalism And Stare Decisis, Amy Coney Barrett

Notre Dame Law Review

The question whether stare decisis is compatible with originalism has occupied both originalists and their critics. In this Essay, I explore what light Justice Scalia’s approach to precedent casts on that question. I argue that while he did treat stare decisis as a pragmatic exception to originalism, that exception was not nearly so gaping as his “fainthearted” quip suggests. In fact, a survey of his opinions regarding precedent suggests new lines of inquiry for originalists grappling with the role of stare decisis in constitutional adjudication.


Justice Scalia's Unfinished Business In Statutory Interpretation: Where Textualism's Formalism Gave Up, Abbe R. Gluck Jul 2017

Justice Scalia's Unfinished Business In Statutory Interpretation: Where Textualism's Formalism Gave Up, Abbe R. Gluck

Notre Dame Law Review

Justice Scalia, in the end, was no interpretive formalist. He would not be pleased to hear this claim, but the fact is that formalism has not succeeded in statutory interpretation, and in fact, the textualism that Justice Scalia deserves so much credit for creating never really embraced formalism at all.

Textualism lacks all the conditions necessary for formalism. It does not have a defined set of predictable rules ordered to ensure objective application. Instead, we have more than one hundred interpretive presumptions—the presumptions favored by textualists—with no defined method of choosing among them. These doctrines of the field ...


Justice Scalia, Implied Rights Of Action, And Historical Practice, Anthony J. Bellia Jr. Jul 2017

Justice Scalia, Implied Rights Of Action, And Historical Practice, Anthony J. Bellia Jr.

Notre Dame Law Review

This Essay examines a specific area that Justice Scalia influenced through the methods of interpretation that he applied—namely, the question of “implied rights of action.”

The idea that federal courts historically applied common law causes of action to remedy federal statutory violations without congressional authorization is a myth. From the first, federal courts heard only those causes of action that Congress had authorized them to hear. And there is reason to think that early federal courts would not have been understood to have power to define their own causes of action had Congress not provided this authorization from the ...


Reviewability And The "Law Of Rules": An Essay In Honor Of Justice Scalia, Adrian Vermeule Jul 2017

Reviewability And The "Law Of Rules": An Essay In Honor Of Justice Scalia, Adrian Vermeule

Notre Dame Law Review

Justice Scalia developed a consistent approach to questions of reviewability: roughly, the idea that “general programs” and “general policies” are to be excluded from judicial review, and even general and legally binding agency rules may or may not be reviewable before enforcement. On this approach, the proper business of courts is to review specific applications of agency rules to particular parties.


Did Justice Scalia Have A Theory Of Interpretation?, Gary Lawson Jul 2017

Did Justice Scalia Have A Theory Of Interpretation?, Gary Lawson

Notre Dame Law Review

It seems beyond bizarre to ask whether Justice Scalia had a theory of textual interpretation. If he did not have such a theory, what were he and his critics talking about for the past three decades? The answer is that they were talking about part of a theory of textual interpretation but not an actual, complete theory. A complete theory of textual interpretation must prescribe principles of admissibility (what counts towards meaning), significance (how much does the admissible evidence count), standards of proof (how much evidence do you need for a justified conclusion), burdens of proof (does inertia lie with ...


The More? Uniform Code Of Military Justice (And A Practical Way To Make It Better), Sean Patrick Flynn Jul 2017

The More? Uniform Code Of Military Justice (And A Practical Way To Make It Better), Sean Patrick Flynn

Notre Dame Law Review

This Note offers suggestions for the successful transition of the military sentencing system, in light of the responses to the federal sentencing system. It goes on to argue that ,because sentencing guidelines are detrimental to the defendant, the military sentencing process should offer a guaranteed, but waivable, two days of preparation to the defendant post-conviction and presentencing.


Compensatory Damages Are Not For Everyone: Section 1997e(E) Of The Prison Litigation Reform Act And The Overlooked Amendment, Eleanor M. Levine Jul 2017

Compensatory Damages Are Not For Everyone: Section 1997e(E) Of The Prison Litigation Reform Act And The Overlooked Amendment, Eleanor M. Levine

Notre Dame Law Review

Since the 2013 Amendment was passed, courts have continued to split regarding how to interpret § 1997e(e), but they have failed to consider whether the 2013 Amendment alters the meaning or clarifies Congress’s intentions with respect to § 1997e(e). This Note argues that the 2013 Amendment changes the plain meaning of § 1997e(e) such that it could lead to different outcomes in cases on both sides of the circuit split, ultimately concluding that it shows Congress intended the more restrictive interpretive approach to prevail. This Note further illustrates how the 2013 Amendment fails to adhere to the goals of ...


Free Will's Enormous Cost: Why Retribution, Grounded In Free Will, Is An Invalid And Impractical Penal Goal, Matthew D. Moyer Jul 2017

Free Will's Enormous Cost: Why Retribution, Grounded In Free Will, Is An Invalid And Impractical Penal Goal, Matthew D. Moyer

Notre Dame Law Review

The lack of free will in human experience causes clear problems for criminal punishment. Free will is a central assumption of retribution; without the free choice to tear the moral fabric of society, one’s actions cannot warrant that she receives punishment. For its invalidity and cost, retribution should not be used as a penological goal in the creation of laws or sentencing. Utilitarian goals, aimed at the social good, should be used in retribution’s place.


Justice Scalia And Class Actions: A Loving Critique, Brian T. Fitzpatrick Jul 2017

Justice Scalia And Class Actions: A Loving Critique, Brian T. Fitzpatrick

Notre Dame Law Review

I am not sure any other Justice of the Supreme Court in American history has done more to hinder the class action lawsuit than Justice Scalia did. Under the auspices of the Federal Arbitration Act (FAA), the Justice authored two majority opinions giving a green light to corporations that want to opt out of class-wide liability entirely so long as they do so using arbitration contracts. It is very hard to square these opinions with either the text or the history of the FAA.

In Part I of this Essay, I review the Justice’s class action opinions; I give ...


The Limits Of Reading Law In The Affordable Care Act Cases, Kevin C. Walsh Jul 2017

The Limits Of Reading Law In The Affordable Care Act Cases, Kevin C. Walsh

Notre Dame Law Review

Justice Scalia’s leadership moved the law of interpretation closer to the central case of statutory interpretation appropriate for our constitutional order. He thereby lawfully improved that law over the course of his judicial tenure even though—over time—this involved transforming rather than simply transmitting the law of interpretation that had been handed down to him.


Justice Scalia And Sherman Act Textualism, Alan J. Meese Jul 2017

Justice Scalia And Sherman Act Textualism, Alan J. Meese

Notre Dame Law Review

This Essay offers a defense of Justice Scalia’s approach to the Sherman Act.


Boyle As Constitutional Preemption, Bradford R. Clark Jul 2017

Boyle As Constitutional Preemption, Bradford R. Clark

Notre Dame Law Review

Justice Scalia’s opinion for the Court in Boyle v. United Technologies Corp. arguably departed from his usual preferences by recognizing a government contractor defense as a matter of federal common law. This Essay offers an alternative rationale for the decision in Boyle grounded in constitutional preemption, and explains why this approach is more consistent with Justice Scalia’s broader methodological and constitutional commitments.


A Textual Analysis Of Whistleblower Protections Under The Dodd-Frank Act, Brent T. Murphy Jul 2017

A Textual Analysis Of Whistleblower Protections Under The Dodd-Frank Act, Brent T. Murphy

Notre Dame Law Review

This Note endorses the reasoning of the Fifth Circuit in Asadi v. G.E. Energy (USA), L.L.C., and argues that the plain language of Dodd-Frank limits its whistleblower protections to individuals who provide information to the SEC. This Note argues that the reasoning of the Second Circuit in Berman v. Neo@Ogilvy LLC relying on the Supreme Court’s decision in King v. Burwell is inapposite, and that the Second Circuit introduced ambiguity where no ambiguity previously existed and improperly extended Chevron deference to the SEC.


Mlb Calendar 2016-2017, Edmund P. Edmonds Jun 2017

Mlb Calendar 2016-2017, Edmund P. Edmonds

MLB Calendars

No abstract provided.


Ll.B. To J.D. At Notre Dame Law School, Beth G. Klein Jun 2017

Ll.B. To J.D. At Notre Dame Law School, Beth G. Klein

1968–1971: William B. Lawless Jr.

At the time of the switch from LL.B. to J.D. (1968-1969) the dean was William B. Lawless. This note documents the research on the topic.


172nd University Of Notre Dame Commencement Program, University Of Notre Dame May 2017

172nd University Of Notre Dame Commencement Program, University Of Notre Dame

Commencement Programs

The Commencement Program includes

  • Schedule of Events
  • Graduate School Ceremony
  • Law School Ceremony
  • Mendoza College of Business Graduate School Ceremony
  • University Commencement Exercises
  • University Commencement Ceremony
  • Undergraduate Commencement Diploma Ceremonies
  • Honorary Doctoral Degrees
  • Laetare Medal Recipient Speaker
  • Valedictorian Candidates
  • Honor Societies
  • Student and Faculty Awards and Prizes
  • Degree Candidate Names


Professor Bruce Huber, Diploma Ceremony Address, Bruce R. Huber May 2017

Professor Bruce Huber, Diploma Ceremony Address, Bruce R. Huber

Commencement Programs

Law Professor, Bruce Huber, Robert and Marion Short Scholar, and the Law School Distinguished Teacher, delivered the diploma ceremony address to the Class of 2017 on May 20, 2017.


172nd Commencement Mass Program, University Of Notre Dame May 2017

172nd Commencement Mass Program, University Of Notre Dame

Commencement Programs

Presiding Celebrant and Homilist: Reverend John I. Jenkins, C.S.C., President of the University of Notre Dame


Remarks Of Dr. Douglass Cassel, Notre Dame Law School Candidate (United States), Inter-American Commission On Human Rights Special Meeting Of The Oas Permanent Council, Douglass Cassell May 2017

Remarks Of Dr. Douglass Cassel, Notre Dame Law School Candidate (United States), Inter-American Commission On Human Rights Special Meeting Of The Oas Permanent Council, Douglass Cassell

Faculty Lectures and Presentations

Cassel briefly addresses four points:

  • First, while the Commission must process cases, that is not its only mission. The case system is a means, not an end. The goal of the Commission is to contribute to the highest possible level of respect for human rights throughout the hemisphere.
  • In addition, while the case system leads at times to adversarial relations, the proactive role is one in which the Commission and States can and should strive to work together toward common goals.
  • His third point is that we need a Commission that serves the peoples of all OAS member States.
  • Finally ...


The Legality And Conduct Of Drone Attacks, Waseem Ahmad Qureshi May 2017

The Legality And Conduct Of Drone Attacks, Waseem Ahmad Qureshi

Notre Dame Journal of International & Comparative Law

Amid contentions of legality and conduct of drone attacks, this paper explores the legitimacy of drone strikes in Pakistan and whether or not they constitute the “use of force” and an “act of war” under international law. This paper will define jus ad bellum—that is, whether it is justified to use force against non-state actors while also taking into consideration the consent of host states under the laws and regulations of the “use of force” and “self-defense” in the United Nations Charter and customary international law—in the context of armed conflict to discuss the legality of drone strikes ...


“Safe Harbor” On The Rocks: Ttb Label Approval For Beer, Wine, And Spirits, And The Uncertain Status Of The “Safe Harbor” Defense, Michael Mercurio May 2017

“Safe Harbor” On The Rocks: Ttb Label Approval For Beer, Wine, And Spirits, And The Uncertain Status Of The “Safe Harbor” Defense, Michael Mercurio

Notre Dame Journal of International & Comparative Law

This Note examines the U.S. Alcohol and Tobacco Tax and Trade Bureau (TTB)’s label review process and the judicial split regarding the “safe harbor” doctrine in the context of alcoholic beverage labels. This Note observes that the judicial split is a result of the tension between two conflicting priorities stemming from the TTB’s purpose and identity: on one hand, courts apply Chevron deference to the TTB as a federal agency enforcing federal law, but on the other hand, courts aim to uphold the central purpose of the Federal Alcohol Administration (FAA) Act—protecting consumers from misinformation. Ultimately ...


Do Desperate Times Really Call For Desperate Measures? The Ethical Dilemma Behind The Regulation And Use Of Experimental Drugs, Lauren Kuehn May 2017

Do Desperate Times Really Call For Desperate Measures? The Ethical Dilemma Behind The Regulation And Use Of Experimental Drugs, Lauren Kuehn

Notre Dame Journal of International & Comparative Law

This Note will argue that, unlike what many patients believe, the U.S. Food and Drug Administration (FDA) plays an invaluable and imperative role in seeking the efficacy and safety of new treatment options and drugs. The balance of interests between those who are terminally ill, who wish to see increased access to unapproved medicines; the general public, who has an interest in preserving the drug approval process; and the FDA, who has been mandated by law to safeguard the safety of the general public, creates a tension that will continue to go unresolved. Thus, the patients who continue to ...


Indirect Sovereignty Through Property Rights, Andreas Rahmatian May 2017

Indirect Sovereignty Through Property Rights, Andreas Rahmatian

Notre Dame Journal of International & Comparative Law

The careful distinction between property and sovereignty is a central part of legal thought from the early modern period onwards. But the reality shows that this division is socioeconomically not that clear. Property rights are rights against persons in relation to things, but effectively they can be rights over people in relation to resources and space—notional, conceptual, or real. Examples of this general trend are the international financial system and international intellectual property protection. If one looks at international commercial and banking law and the corresponding regulations, one realizes that the classical understanding of sovereignty in political philosophy and ...


Spill Your (Trade) Secrets: Knowledge Networks As Innovation Drivers, Laura G. Pedraza-Fariña May 2017

Spill Your (Trade) Secrets: Knowledge Networks As Innovation Drivers, Laura G. Pedraza-Fariña

Notre Dame Law Review

Theories of intellectual property take the individual inventor or the firm as the unit of innovation. But studies in economic sociology show that in complex fields where knowledge is rapidly advancing and widely dispersed among different firms, the locus of innovation is neither an individual nor a single firm. Rather, innovative ideas originate in the informal networks of learning and collaboration that cut across firms.

Understanding innovation in this subset of industries as emerging out of networks of informal information-sharing across firms challenges traditional utilitarian theories of trade secret law—which assume trade secret protection is needed to prevent excessive ...


Boundaries, Extraterritoriality, And Patent Infringement Damages, Timothy R. Holbrook May 2017

Boundaries, Extraterritoriality, And Patent Infringement Damages, Timothy R. Holbrook

Notre Dame Law Review

Patents are generally considered to be the most territorial of all the various forms of intellectual property. Even patent law, however, has confronted issues involving the application of a U.S. patent to extraterritorial activity. The Supreme Court has expressed an interest in both issues – the extraterritorial application of U.S. law and patent law. At times, these interests have intersected. Notwithstanding the Court’s recent elaborations on extraterritoriality, the approach by the U.S. Court of Appeals for the Federal Circuit has been, at best, inconsistent. At times the court has afforded extraterritorial protection, even in the face of ...


Introduction: Negotiating Ip's Boundaries In An Evolving World, Stephen Yelderman May 2017

Introduction: Negotiating Ip's Boundaries In An Evolving World, Stephen Yelderman

Notre Dame Law Review

The common element of the articles that make up this Symposium Issue is a refusal to dismiss difficult questions with mechanical formality, to paper over the wrinkles that emerge when the simple models that function in the middle flounder at the edge. As this Symposium Issue will show, those wrinkles have a lot to tell us.