Law Commons^™

Challenging Federalism: How The States’ Loud Constitutional Provocation Is Being Met With Silence, Jennifer M. Haidar

Journal of Legislation

No abstract provided.

Collusion, Obstruction Of Justice, And Impeachment, Ediberto Roman, Melissa Gonzalez, Dianet Torres

Journal of Legislation

No abstract provided.

The Unconstitutionality Of The Protecting Access To Care Act Of 2017’S Cap On Noneconomic Damages In Medical Malpractice Cases, Kaeleigh P. Christie

Journal of Legislation

No abstract provided.

Individual Rights Under State Constitutions In 2018: What Rights Are Deeply Rooted In A Modern-Day Consensus Of The States?, Steven G. Calabresi, James Lindgren, Hannah M. Begley, Kathryn L. Dore, Sarah E. Agudo

Notre Dame Law Review

This Article is actually the third and final article in a series that began with (A) Steven G. Calabresi & Sarah E. Agudo, Individual Rights Under State Constitutions When the Fourteenth Amendment Was Ratified in 1868: What Rights Are Deeply Rooted in American History and Tradition?; and (B) Steven G. Calabresi, Sarah E. Agudo, and Kathryn L. Dore, State Bills of Rights in 1787 and 1791: What Individual Rights Are Really Deeply Rooted in American History and Tradition?. This Article looks at what rights are protected by state constitutions today, in 2018, and compares our findings with the …

Due Process, Free Expression, And The Administrative State, Martin H. Redish, Kristin Mccall

Notre Dame Law Review

The first Part of this Article will explore the theoretical foundations of procedural due process, focusing particularly on the essential due process requirement of a neutral adjudicator. We will follow that discussion with an analysis of the extent to which administrative adjudication of constitutional challenges to its regulatory authority or decisions satisfies the demands of procedural due process. After concluding that administrative regulators categorically fail to satisfy the requirements of due process, at least in the context of constitutional challenges to their regulatory authority, we will explain why the availability of post–administrative judicial review cannot cure the constitutional defect in …

Executive Authority And The Take Care Clause, Colleen E. O'Connor

Notre Dame Law Review

Part I of this Note will discuss the Department of Homeland Security’s authority to regulate immigration and focuses on DACA and DAPA. Part II will address the U.S. Department of Justice’s Office of Legal Counsel Opinion on DAPA’s legality. Part III will turn to the lack of judicial constraints on or legislative responses to the executive branch’s enforcement discretion. Part IV will propose that the executive branch should take a more active role in ensuring that the President remains faithful to the Take Care Clause when exercising prosecutorial discretion. Expounding upon the Office of Legal Counsel’s multifactor framework is a …

Special Justifications, Randy J. Kozel

Journal Articles

The Supreme Court commonly asks whether there is a “special justification” for departing from precedent. In this Response, which is part of a Constitutional Commentary symposium on Settled Versus Right: A Theory of Precedent, I examine the existing law of special justifications and describe its areas of uncertainty. I also compare the Court’s current doctrine with a revised approach to special justifications designed to separate the question of overruling from deeper disagreements about legal interpretation. The aspiration is to establish precedent as a unifying force that enhances the impersonality of the Court and of the law, promoting values the Justices …

Qualified Immunity At Trial, Alexander A. Reinert

Notre Dame Law Review

Qualified immunity doctrine is complex and important, and for many years it was assumed to have an outsize impact on civil rights cases by imposing significant barriers to success for plaintiffs. Recent empirical work has cast that assumption into doubt, at least as to the impact qualified immunity has at pretrial stages of litigation. This Essay adds to this empirical work by evaluating the impact of qualified immunity at trial, a subject that to date has not been empirically tested. The results reported here suggest that juries are rarely asked to answer questions that bear on the qualified immunity defense. …

Foreword: The Future Of Qualified Immunity, Samuel L. Bray

Notre Dame Law Review

Qualified immunity is not an unqualified success. This defense, which protects officers from liability for damages unless they violate clearly established law, has attracted many critics. Some object to its weak historical foundations, while others find its policy effects to be perverse. Yet the doctrine is shown a special solicitude by the Supreme Court. The Court issues many summary reversals in qualified immunity cases, and the effect of these reversals is all in one direction: they protect, entrench, and extend the defense of qualified immunity. There have been calls for a reconsideration of the doctrine, including in a recent opinion …

A Qualified Defense Of Qualified Immunity, Aaron L. Nielson, Christopher J. Walker

Notre Dame Law Review

In recent years, two new fronts of attack on qualified immunity have emerged. This Essay responds to both and provides a qualified defense of qualified immunity. Part I addresses Will Baude’s argument that qualified immunity finds no support in positive law. Part II turns to Joanna Schwartz’s pioneering empirical work that has been marshaled to question qualified immunity’s effectiveness as a matter of policy.

These two sets of criticisms—a one-two punch that qualified immunity is both unlawful and ineffective—merit serious consideration and further investigation. Neither, however, is dispositive; there are important counterpoints that merit further analysis. But ours is a …

The Intractability Of Qualified Immunity, Alan K. Chen

Notre Dame Law Review

This Essay offers an internal critique of qualified immunity law that explains why these problems remain intractable and why, unfortunately, there is little hope for resolution of the doctrine’s central dilemmas, short of either abandoning immunity or making it absolute. The Essay breaks down its discussion of qualified immunity into three distinct, but related, categories, and argues that the challenges presented within each category are difficult, if not impossible, to overcome. First, it addresses what can best be described as qualified immunity’s foundational jurisprudential tensions. Embedded in the doctrine are several first-level legal theory problems that can be identified and …

The Case Against Qualified Immunity, Joanna C. Schwartz

Notre Dame Law Review

If the Court did find an appropriate case to reconsider qualified immunity, and took seriously available evidence about qualified immunity’s historical precedents and current operation, the Court could not justify the continued existence of the doctrine in its current form. Ample evidence undermines the purported common-law foundations for qualified immunity. Research examining contemporary civil rights litigation against state and local law enforcement shows that qualified immunity also fails to achieve its intended policy aims. Qualified immunity does not shield individual officers from financial liability. It almost never shields government officials from costs and burdens associated with discovery and trial in …

The Horror Chamber: Unqualified Impunity In Prison, David M. Shapiro, Charles Hogle

Notre Dame Law Review

The federal courts have been open to prisoners’ constitutional claims for half a century, but to this day, the availability of federal litigation has not stopped prisoners from being tortured, maimed, killed, or otherwise made to suffer chilling abuse. The failure of litigation as a deterrent is due in part to a confluence of legal and situational factors—doctrinal deference, statutory hurdles, and the many difficulties associated with litigating a civil rights case against one’s jailers—that make prison-conditions cases virtually impossible to win. We call this combination of factors “practical immunity.” Practical immunity amounts to a formidable barrier against successful prison-conditions …

Mischief Managed? The Unconstitutionality Of Sec Aljs Under The Appointments Clause, Jackson C. Blais

Notre Dame Law Review

This Note argues that SEC ALJs are inferior officers of the United States and, as a result, are unconstitutional under the Appointments Clause. Part I examines the current state of ALJs and the jurisprudence of the Appointments Clause. Part II provides an analysis of the circuit split between the Tenth and D.C. Circuits over the question of SEC ALJs and the Appointments Clause. Part III argues that the Tenth Circuit in Bandimere v. SEC correctly decided the question presented. This Part further urges the Supreme Court to reverse the D.C. Circuit’s holding in Lucia and, in so doing, adhere to …

Qualified Immunity: Time To Change The Message, Karen M. Blum

Notre Dame Law Review

This Essay will proceed in four parts. Parts I, II, and III will highlight, through some recent illustrative cases, areas where the qualified immunity defense has been especially ineffective and inefficient by: (Part I) hampering the development of constitutional law and impeding the redress of constitutional wrongs; (Part II) draining resources of litigants and courts through interlocutory appeals that are frequently without merit and often jurisdictionally suspect; and (Part III) breeding confusion into the roles of the judge and the jury in our judicial system, effectively enhancing the judge’s role at the expense of the constitutional right to jury trial. …

Formalism, Ferguson, And The Future Of Qualified Immunity, Fred O. Smith Jr.

Notre Dame Law Review

This Essay explores whether formalism and accountability are compatible lodestars as we steer toward a new future for qualified immunity. Ultimately, I argue that two existing proposals would bring the doctrine closer to its text and history, mitigate against fragmentation in the law of constitutional torts, and narrow the rights-remedies gap when government officials violate the Constitution. One proposal, by John Jeffries, would create a fault-based system, where government officials and entities alike would be liable for constitutional violations that are both unreasonable and unconstitutional. Another proposal would render governmental employers’ liable for the acts of their agents.

Qualified Immunity And Fault, John F. Preis

Notre Dame Law Review

This Essay describes, critiques, and attempts to reform the role of fault in the defense of qualified immunity. It first argues, in Part I, that the defense does not properly assess fault because it immunizes persons who are at fault and holds liable persons who are not. The chief cause of this problem is that the defense is focused on an exceedingly narrow source of law: appellate judicial opinions. Appellate opinions are, not surprisingly, rarely read by government officers and, even when their substance is communicated to officers, they only comprise one of many factors that affect the blameworthiness of …

The Branch Best Qualified To Abolish Immunity, Scott Michelman

Notre Dame Law Review

Qualified immunity—the legal doctrine that shields government officials from suit for constitutional violations unless the right they violate “is sufficiently clear that every reasonable official would have understood that what he is doing violates that right”—has come under increasing judicial and scholarly criticism from diverse ideological viewpoints. This Essay considers the question of which branch of government should fix it. I take as a starting point the many critiques of qualified immunity and then turn to the question of whether courts should wait for Congress to reform this problematic doctrine. Do considerations of stare decisis or institutional competence counsel in …

Brief Of Amici Curiae Intellectual Property Law Professors, Mark Mckenna, Rebecca Tushnet, Yvette Joy Liebesman, John A. Conway

Court Briefs

Untethered to a sufficient public policy interest, right of publicity claims have exploded nationwide. Plaintiffs have asserted claims against inspirational plaques featuring civil rights icons, Rosa and Raymond Parks Inst. for Self Dev. v. Target Corp., 812 F.3d 824 (11th Cir. 2016),artwork commemorating significant events, Moore v. Weinstein Co., LLC, 545 Fed. App’x. 405 , 407 (6th Cir. 2013); ETW Corp. v. Jireh Publ’g, Inc., 332 F.3d 915 (6th Cir. 2003), Wikipedia edits that truthfully connected an astronaut with the watch he wore on his Moon walk, Scott v. Citizen Watch Co. of Am., Inc., 17-CV-00436-NC, 2018 WL 1626773 (N.D. …

Employment Division V. Smith And State Free Exercise Protections: Should State Courts Feel Obligated To Apply The Federal Standard In Adjudicating Alleged Violations Of Their State Free Exercise Clauses?, Matthew Linnabary

Notre Dame Law Review Reflection

State courts should feel free to apply whatever test is most appropriate based on the textual provisions of their state constitution that protects the free exercise or worship of its citizens. Of course, such freedom to the state courts is greatly limited in many states by the passage of their own Religious Freedom Restoration Acts. These acts generally set forth precisely how the courts must determine whether or not a law violates the free exercise or worship of a claimant. Even if not limited by a RFRA—which would generally require strict scrutiny—a state court should apply strict scrutiny to violations …

The Canon Of Rational Basis Review, Katie R. Eyer

Notre Dame Law Review

The modern constitutional law canon fundamentally misdescribes rational basis review. Through a series of errors—of omission, simplification, and recharacterization—we have largely erased a robust history of the use of rational basis review by social movements to generate constitutional change. Instead, the story the canon tells is one of dismal prospects for challengers of government action—in which rational basis review is an empty, almost meaningless form of review.

This Article suggests that far from the weak and ineffectual mechanism that most contemporary accounts suggest, rational basis review has, in the modern era, served as one of the primary equal protection entry …

Originalism, Cass R. Sunstein

Notre Dame Law Review

Originalism might be defended on two very different grounds. The first is that it is in some sense mandatory—for example, that it follows from the very idea of interpretation, from having a written Constitution, or from the only legitimate justifications for judicial review. The second is that originalism is best on broadly consequentialist grounds. While the first kind of defense is not convincing, the second cannot be ruled off limits. In an imaginable world, it is right; in our world, it is usually not. But in the context of impeachment, originalism is indeed best, because there are no sufficiently helpful …

Introduction: Administrative Lawmaking In The Twenty-First Century, Jeffrey A. Pojanowski

Notre Dame Law Review

It is always hard to map a river while sailing midstream, but the current state of administrative law is particularly resistant to neat tracing. Until the past few years, administrative law and scholarship was marked by pragmatic compromise: judicial deference on questions of law (but not too much and not all the time) and freedom for agencies on questions of politics and policy (but not to an unseemly degree). There was disagreement around the edges—and some voices in the wilderness calling for radical change—but they operated within a shared framework of admittedly unstated, and perhaps conflicting, assumptions about the administrative …

The Attorney General And Early Appointments Clause Practice, Aditya Bamzai

Notre Dame Law Review

This Article proceeds as follows. In Part I, I provide an overview of the Appointments Clause and the officer-employee line as it currently stands in caselaw and in executive branch practice. I also summarize the Appointments Clause practices of the First Congress. In Part II, I address the opinions of the Attorneys General, and their attempt to rationalize and to explain the statutes enacted by the First Congress and the appointments practices of the nation. In Part III, I derive some implications and conclusions, generally for the Appointments Clause and specifically for the Administrative Law Judge controversy that is currently …

How Agencies Choose Whether To Enforce The Law: A Preliminary Investigation, Aaron L. Nielson

Notre Dame Law Review

One of the most controversial aspects of administrative law in recent years concerns agency decisions not to enforce the law. Such nonenforcement is often beneficial or, in any event, inevitable. A particular violation may be so distant from what Congress or the agency had in mind when the general prohibition was put on the books that enforcement makes little sense. Likewise, because agencies have finite resources, they cannot enforce the law in all situations. At the same time, however, nonenforcement can also raise difficult questions about basic notions of fairness and administrative regularity, as well as separation of powers concerns. …

Qui Tam Litigation Against Government Officials: Constitutional Implications Of A Neglected History, Randy Beck

Notre Dame Law Review

The Supreme Court concluded twenty-five years ago, in Lujan v. Defenders of Wildlife, that uninjured private plaintiffs may not litigate “generalized grievances” about the legality of executive branch conduct. According to the Lujan Court, Congress lacked power to authorize suit by a plaintiff who could not establish some “particularized” injury from the challenged conduct. The Court believed litigation to require executive branch legal compliance, brought by an uninjured private party, is not a “case” or “controversy” within the Article III judicial power and impermissibly reassigns the President’s Article II responsibility to “take Care that the Laws be faithfully executed.” …

Symbolism And Separation Of Powers In Agency Design, Kristin E. Hickman

Notre Dame Law Review

My goal with this Essay is a modest one: to raise a few reservations regarding judicial refashioning of agency design via this severance remedy for separation of powers violations. To that end, the Essay will proceed fairly straightforwardly. I will describe three cases or sets of cases in which the Supreme Court or the D.C. Circuit has employed the severance remedy: Free Enterprise Fund v. Public Company Accounting Oversight Board, a series of D.C. Circuit cases brought by the Intercollegiate Broadcasting System against the Copyright Royalty Board, and PHH Corp. v. Consumer Financial Protection Bureau. Then I will highlight three …

Accountability For Nonenforcement, Urska Velikonja

Notre Dame Law Review

Changes in enforcement can move in more than one direction: enforcement can increase significantly as the Securities and Exchange Commission saw in the aftermath of the accounting scandals or the Madoff Ponzi scheme, and decrease precipitously, as evidenced at the Consumer Financial Protection Bureau under Acting Director Mick Mulvaney. There is no reason in constitutional or administrative law to treat changes in enforcement policy differently depending on whether enforcement increases or decreases. Policy choices raise similar questions about reviewability and accountability, regardless of whether they increase or decrease enforcement. They also raise symmetrical questions about fair notice and due process …

The Never-Ending Assault On The Administrative State, Jack M. Beermann

Notre Dame Law Review

This Article is an exploration of the twists and turns of the never-ending assault on the administrative state. Without attempting to resolve all of the separation of powers controversies that have existed since the beginning of the Republic, this Article examines and analyzes the fundamental constitutional challenges to the administrative state as well as the more peripheral constitutional difficulties involving the administrative state and the nonconstitutional legal challenges that have arisen over the decades. In my view, the legal and political arguments made in favor of major structural changes to the administrative state do not provide sufficient normative bases for …

The Ambiguous Ambiguity Inquiry: Seeking To Clarify Judicial Determinations Of Clarity Versus Ambiguity In Statutory Interpretation, Meredith A. Holland

Notre Dame Law Review

This Note will apply Judge Kavanaugh’s proposed mechanism to the interpretation of the Title IX prohibition of discrimination on the basis of sex. Part I discusses recent cases decided by the Roberts Court that demonstrate the difficulties with the current jurisprudential approach to the clarity versus ambiguity determination. Part II explores Judge Kavanaugh’s recent proposal for reducing threshold findings of ambiguity. Part III considers various interpretive methods and applies Judge Kavanaugh’s proposal in the context of Title IX. Finally, this Note concludes that Judge Kavanaugh’s approach, while most dramatically transforming the purposivist approach, also has consequences for the textualist inquiry.