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Articles 31 - 55 of 55
Full-Text Articles in Law
Virtue, Freedom, And The First Amendment, Marc O. Degirolami
Virtue, Freedom, And The First Amendment, Marc O. Degirolami
Notre Dame Law Review
The modern First Amendment embodies the idea of freedom as a fundamental good of contemporary American society. The First Amendment protects and promotes everybody’s freedom of thought, belief, speech, and religious exercise as basic goods—as given ends of American political and moral life. It does not protect these freedoms for the sake of promoting any particular vision of the virtuous society. It is neutral on that score, setting limits only in those rare cases when the exercise of a First Amendment freedom exacts an intolerable social cost. The Article concludes with two speculations. First, it seems we are no longer …
Catholic Constitutionalism From The Americanist Controversy To Dignitatis Humanae, Anna Su
Catholic Constitutionalism From The Americanist Controversy To Dignitatis Humanae, Anna Su
Notre Dame Law Review
This Article, written for a symposium on the fiftieth anniversary of Dignitatis Humanae, or the Roman Catholic Church’s Declaration on Religious Freedom, traces a brief history of Catholic constitutionalism from the Americanist controversy of the late nineteenth century up until the issuance of Dignitatis Humanae as part of the Second Vatican Council in 1965. It argues that the pluralist experiment enshrined in the First Amendment of the U.S. Constitution was a crucial factor in shaping Church attitudes towards religious freedom, not only in the years immediately preceding the revolutionary Second Vatican Council but ever since the late nineteenth century, …
Law Enforcement As Political Question, Zachary S. Price
Law Enforcement As Political Question, Zachary S. Price
Notre Dame Law Review
Across a range of contexts, federal courts have crafted doctrines that limit judicial secondguessing 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 …
Against Martyrdom: A Liberal Argument For Accommodation Of Religion, Paul Horwitz
Against Martyrdom: A Liberal Argument For Accommodation Of Religion, Paul Horwitz
Notre Dame Law Review
Drawing in part on that literature, and in sympathy with the desire to reaffirm the importance of religious freedom and the accommodation of religious groups and practices without opposing or disdaining liberalism or progressivism altogether,18 this Article offers a liberal argument in favor of the legal accommodation of religion, including the accommodation of illiberal religious groups and practices. Although my own work is substantially pluralist in orientation, the argument here is intended to appeal directly to more “rationalist” liberals.
Religious Majorities And Restrictions On Religion, Brett G. Scharffs
Religious Majorities And Restrictions On Religion, Brett G. Scharffs
Notre Dame Law Review
Social scientists studying freedom of religion and belief have focused upon two types of restrictions on religious freedom, formal restrictions that take the form of laws and other official legal limitations on freedom of religion and belief, and informal restrictions that take the form of social hostilities towards religion or towards particular religious groups, usually minorities. This Article seeks to build upon this work in three ways: first, by noting the striking correlations between countries with very high or high legal restrictions and social hostilities regarding religion and the frequent presence of a dominant religious group in those countries; second, …
Of Human Dignities, Mark L. Movsesian
Of Human Dignities, Mark L. Movsesian
Notre Dame Law Review
I proceed as follows. In Part I, I discuss the conflict between objective and subjective conceptions of human dignity, particularly in the context of same-sex marriage and “traditional values” resolutions at the UN Human Rights Council. In Part II, I discuss the conflict between individualist and corporate conceptions, focusing on proselytism and the right to convert. In Part III, I conclude with some observations on the implications of the disagreements I have identified.
The Tortuous Course Of Religious Freedom, Steven D. Smith
The Tortuous Course Of Religious Freedom, Steven D. Smith
Notre Dame Law Review
This Essay, written for a conference at Notre Dame on Dignitatis Humanae, considers new challenges to and issues for religious freedom that have arisen recently in a world significantly changed from that of the 1960s, when the Declaration was first issued.
Unilateral Invasions Of Privacy, Roger Allan Ford
Unilateral Invasions Of Privacy, Roger Allan Ford
Notre Dame Law Review
Most people seem to agree that individuals have too little privacy, and most proposals to address that problem focus on ways to give those users more information about, and more control over, how information about them is used. Yet in nearly all cases, information subjects are not the parties who make decisions about how information is collected, used, and disseminated; instead, outsiders make unilateral decisions to collect, use, and disseminate information about others. These potential privacy invaders, acting without input from information subjects, are the parties to whom proposals to protect privacy must be directed. This Article develops a theory …
Stop The Reach: Solving The Judicial Takings Problem By Objectively Defining Property, Steven C. Begakis
Stop The Reach: Solving The Judicial Takings Problem By Objectively Defining Property, Steven C. Begakis
Notre Dame Law Review
The future of judicial takings may rest on the ability of the Court to define property in a robust and objective way. Property has essential characteristics that make it easily identifiable, the most significant of which are the rights to exclude and use. However, even when a property right does not fit within a neat categorical definition, should that right have a long, well established pedigree in state court precedent, that property right is similarly within the capacity of the reviewing court to identify. And once it is determined that, prior to the judgment, the petitioners possessed a clearly defined …
The Supreme Court's Quiet Revolution In Induced Patent Infringement, Timothy R. Holbrook
The Supreme Court's Quiet Revolution In Induced Patent Infringement, Timothy R. Holbrook
Notre Dame Law Review
The Supreme Court over the last decade or so has reengaged with patent law. While much attention has been paid to the Court’s reworking of what constitutes patent-eligible subject matter and enhancing tools to combat “patent trolls,” what many have missed is the Court’s reworking of the contours of active inducement of patent infringement under 35 U.S.C. § 271(b). The Court has taken the same number of § 271(b) cases as subject matter eligibility cases—four. Yet this reworking has not garnered much attention in the literature. This Article offers the first comprehensive assessment of the Court’s efforts to define active …
Patent "Trolls" And Claim Construction, Greg Reilly
Patent "Trolls" And Claim Construction, Greg Reilly
Notre Dame Law Review
This Article explores the largely overlooked relationship between claim construction and patent assertion entities (patent “trolls”), finding that claim construction problems and trends benefit patent assertion entities. First, the Federal Circuit’s deep divide over the proper approach to claim construction creates uncertain patent scope, which is widely recognized as a core reason for the success of patent assertion entities. Second, case law and commentary increasingly endorse an approach to claim construction that relies on the “general meaning” in the technical field with limited reliance on the patent itself, which benefits patent assertion entities by increasing the breadth and uncertainty of …
The Unconscionable War On Moral Conscience, Michael Stokes Paulsen
The Unconscionable War On Moral Conscience, Michael Stokes Paulsen
Notre Dame Law Review
My thesis in this review builds on and is inspired in part by George’s book: Where, or to the extent that, a conflict between conscience and authority reduces to a pure stand on principle by each side—sincere conscience for its sake versus authority for its—in a free society conscience should almost always win. The only time that claims of government authority should triumph over genuine claims of religious conscience is when religiously motivated conduct would produce essentially intolerable harm to others—harm of a kind and degree that would lead one to conclude (in effect, not literally) that it is inconceivable …
The Big Data Jury, Andrew Guthrie Ferguson
The Big Data Jury, Andrew Guthrie Ferguson
Notre Dame Law Review
Big data technologies now exist to create algorithmically perfect jury pools matching the demographic realities of a community. Big data technologies also exist to provide litigants a wealth of personal information about potential jurors. The question remains whether these technological innovations benefit the jury system. This Article addresses the disruptive impact of big data on jury selection and the dilemma it presents to courts, lawyers, and citizens.
The Meanings Of The "Privileges And Immunities Of Citizens" On The Eve Of The Civil War, David R. Upham
The Meanings Of The "Privileges And Immunities Of Citizens" On The Eve Of The Civil War, David R. Upham
Notre Dame Law Review
The Fourteenth Amendment to our Constitution provides, in part, that “[n]o State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States.” This “Privileges or Immunities Clause” has been called “the darling of the professoriate.” Indeed, in the last decade alone, law professors have published dozens of articles treating the provision. The focus of this particular study is the interpretation of the “privileges and immunities of citizens” offered by American political actors, including not only judges, but also elected officials and private citizens, before the Fourteenth Amendment, and primarily, on the …
Federalism And State Marijuana Legislation, Dean M. Nickles
Federalism And State Marijuana Legislation, Dean M. Nickles
Notre Dame Law Review
An increasing number of states have passed legislation legalizing medical and recreational marijuana. This Note provides a survey of the language utilized by these states in their legislation and legislative materials, searching for and highlighting those purposes and intentions of the states, which implicate, explicitly or implicitly, federalism. Through this survey of mostly primary source materials, various trends and similarities among the materials will be apparent, and this Note will provide a useful resource for those trying to understand why the states may have enacted these laws.
The Runaway Wagon: How Past School Discrimination, Finance, And Adequacy Case Law Warrants A Political Question Approach To Education Reform Litigation, Anthony Bilan
Notre Dame Law Review
Courtroom battles surrounding school finance and adequacy claims are very much alive today, nearly forty years after their progenitor, Serrano v. Priest. In spawning a potential new chapter in this history, a trial court in California struck down its state’s battalion of teacher tenure and employment laws under a legal analysis based in the education quality that those laws provided. This “landmark” case, Vergara, is generating conversation that its results could be duplicated throughout the nation. In a format familiar to school finance litigation, the Vergara court found that the state’s tenure statutes so detrimentally affected teaching that …
Originalist Or Original: The Difficulties Of Reconciling Citizens United With Corporate Law History, Leo E. Strine Jr., Nicholas Walter
Originalist Or Original: The Difficulties Of Reconciling Citizens United With Corporate Law History, Leo E. Strine Jr., Nicholas Walter
Notre Dame Law Review
In this Article, we focus on a specific question raised by Citizens United, which is whether the Supreme Court’s decision can be justified solely by application of the originalist method of constitutional interpretation, or whether it can only be explained by giving substantial weight to a more modern, evolved understanding of the relevant constitutional provisions. We conclude that however Citizens United is rationalized, it cannot be defended solely or primarily as the product of a disciplined application of the originalist method of constitutional interpretation. Because Citizens United takes a view at odds both with the historical understanding of business …
A Framework For Bailout Regulation, Anthony J. Casey, Eric A. Posner
A Framework For Bailout Regulation, Anthony J. Casey, Eric A. Posner
Notre Dame Law Review
During the height of the financial crisis in 2008 and 2009, the government bailed out numerous corporations, including banks, investment banks, and automobile manufacturers. While the bailouts helped end the financial crisis, they were intensely controversial at the time, and were marred by the ad hoc, politicized quality of the government intervention. We examine the bailouts from the financial crisis as well as earlier bailouts to determine what policy considerations best justify them, and how they are best designed. The major considerations in bailing out and structuring the bailout of a firm are the macroeconomic impact of failure; the moral …
The Promises And Perils Of Evidence-Based Corrections, Cecelia Klingele
The Promises And Perils Of Evidence-Based Corrections, Cecelia Klingele
Notre Dame Law Review
Public beliefs about the best way to respond to crime change over time, and have been doing so at a rapid pace in recent years. After more than forty years of ever more severe penal policies, the punitive sentiment that fueled the growth of mass incarceration in the United States appears to be softening. Across the country, prison growth has slowed and, in some places, has even reversed. Many new laws and policies have enabled this change. The most prominent of these implement or reflect what have been called “evidence-based practices” designed to reduce prison populations and their associated fiscal …
Standing Doctrine's State Action Problem, Seth Davis
Standing Doctrine's State Action Problem, Seth Davis
Notre Dame Law Review
Something surprising happened in the 2013 marriage equality cases that did not involve striking down the Defense of Marriage Act. The Supreme Court discovered standing doctrine’s state action problem. In standing doctrine, as elsewhere, the law distinguishes private from governmental action. There are, simply put, different standing rules for state actors than for private litigants. How should the law sort state actors from private litigants for the purposes of standing? In Hollingsworth v. Perry, the Court held that Article III limits government standing to common law agents who owe fiduciary duties to the state. The Perry Court’s apparent concern was …
Why The Right To Elective Abortion Fails Casey'S Own Interest-Balancing Methodology—And Why It Matters, Stephen G. Gilles
Why The Right To Elective Abortion Fails Casey'S Own Interest-Balancing Methodology—And Why It Matters, Stephen G. Gilles
Notre Dame Law Review
Casey adopted a new, interest-balancing framework for the right to elective abortion while preserving the core of that right. But by declining to address whether the right to elective abortion can be justified in interest-balancing terms, Casey opened the door to unduly stringent applications of the undue-burden standard and, no less importantly, to future extensions of the right. By ruling that the state’s interest in protecting pre-viable fetal life outweighs the woman’s interest in an elective abortion, while preserving that right on stare decisis grounds, the Court could ensure that the balance it struck in Casey—and that “was central …
Nuclear Stalemate: Indefinite Above-Ground Storage Is A Temporary, Albeit Safe Band-Aid For A Serious Wound, Steven D. Melzer
Nuclear Stalemate: Indefinite Above-Ground Storage Is A Temporary, Albeit Safe Band-Aid For A Serious Wound, Steven D. Melzer
Notre Dame Law Review
This Note focuses on the validity and wisdom of the Nuclear Regulatory Commission’s approach: the September 2014 Rule and accompanying Generic Environmental Impact Statement (GEIS), as well as their combined potential to significantly alter the trajectory of spent fuel storage and disposal in the United States. Part I will explain the relevant history helpful to understand the political battles and legal issues surrounding spent fuel disposal and the Yucca Mountain project. Parts II and III will analyze the implications of the new Continued Storage Rule and why it likely satisfies all applicable statutory requirements and judicial orders. Part IV will …
The Curious Case Of Seminole Rock: Revisiting Judicial Deference To Agency Interpretations Of Their Ambiguous Regulations, Peter M. Torstensen Jr.
The Curious Case Of Seminole Rock: Revisiting Judicial Deference To Agency Interpretations Of Their Ambiguous Regulations, Peter M. Torstensen Jr.
Notre Dame Law Review
Seminole Rock deference warrants reconsideration as it is based on questionable constitutional and pragmatic foundations. This Note argues that courts should provide a meaningful check on agency interpretations by engaging in de novo review of agency resolutions of regulatory ambiguities. Part I explores the development of the Seminole Rock doctrine, from its questionable doctrinal foundations and rapid expansion to the developing concerns regarding its continued validity. In addition, Part I explains the variety of forms that agency interpretations can take, including legal briefs, amicus briefs, and internal memoranda, and discusses their impact in expanding the scope of Seminole Rock deference. …
Privacy And Markets: A Love Story, Ryan Calo
Privacy And Markets: A Love Story, Ryan Calo
Notre Dame Law Review
After defining terms, Part I lays out the law and economics case against privacy, including its basis in economic thought more generally. Part II canvasses the literature responding to economic skepticism in the privacy law literature. Some scholars mount an insider critique, accepting the basic tenets of economics but suggesting that privacy actually increases efficiency in some contexts, or else noting that markets themselves will yield privacy under the right conditions. Others critique economic thinking from the outside. Markets “unravel” privacy by penalizing it, degrade privacy by treating it as just another commodity, or otherwise interfere with the values or …
Dna And Distrust, Kerry Abrams, Brandon L. Garrett
Dna And Distrust, Kerry Abrams, Brandon L. Garrett
Notre Dame Law Review
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 identification testing. The U.S. Supreme Court in …