Law Commons^™

Precedent In A Polarized Era, Zachary S. Price

Notre Dame Law Review

My Review begins below in Part I with a brief synopsis of Professor Kozel’s argument. Part II then discusses his theory’s particular value, and challenges, in our historical moment of acute polarization and political conflict over constitutional law. To make Part II’s claims more concrete, Part III then turns to Janus and Wayfair. It uses the two cases to illustrate pressures courts may face in the years ahead and assesses how well these decisions accord with Kozel’s theory. The Review ends with a conclusion reflecting more broadly on the importance of stare decisis and other institutional restraints in the current …

If The Text Is Clear—Lexical Ordering In Statutory Interpretation, Adam M. Samaha

Notre Dame Law Review

Most courts now endorse lexical ordering for statutory cases. That is, a limited set of top-tier sources, if adequately clear, are supposed to establish statutory meaning. Lower-tier sources are held in reserve for close calls. Examples include legislative history and deference to agency positions, which often are demoted into tiebreaking roles. In fact, some such hierarchy of sources is approved by working majorities at the U.S. Supreme Court and more than forty state supreme courts. Although popular today, lexically ordered interpretation has risen and fallen before. Indeed, we should pause to reconsider whether these instructions are justified and whether judges …

A Rule-Based Method For Comparing Corporate Laws, Lynn M. Lopucki

Notre Dame Law Review

Part I explains the processes for specifying a Scenario. It introduces the Scenario that will serve as the illustration in the remainder of this Article—a comparison of the liability of directors for the exercise of poor judgment in a Delaware corporation with the corresponding liability in a United Kingdom public limited company. Part II explains and illustrates the necessity of selecting specific entity types for comparison. Part III describes and illustrates the method for resolving the Scenario in both jurisdictions. Part IV explains and illustrates the novel process for close comparison—the extraction, juxtaposition, and comparison of decisional rules from the …

Securities Law In The Sixties: The Supreme Court, The Second Circuit, And The Triumph Of Purpose Over Text, A.C. Pritchard, Robert B. Thompson

Notre Dame Law Review

This Article analyzes the Supreme Court’s leading securities cases from 1962 to 1972—SEC v. Capital Gains Research Bureau, Inc.; J.I. Case Co. v. Borak; Mills v. Electric Auto-Lite Co.; Superintendent of Insurance v. Bankers Life & Casualty Co.; and Affiliated Ute of Utah v. United States—relying not just on the published opinions, but also the Justices’ internal letters, memos, and conference notes. The Sixties Court did not simply apply the text as enacted by Congress, but instead invoked the securities laws’ purposes as a guide to interpretation. The Court became a partner of Congress …

The Algorithm Game, Jane Bambauer, Tal Zarsky

Notre Dame Law Review

Most of the discourse on algorithmic decisionmaking, whether it comes in the form of praise or warning, assumes that algorithms apply to a static world. But automated decisionmaking is a dynamic process. Algorithms attempt to estimate some difficult-to-measure quality about a subject using proxies, and the subjects in turn change their behavior in order to game the system and get a better treatment for themselves (or, in some cases, to protest the system.) These behavioral changes can then prompt the algorithm to make corrections. The moves and countermoves create a dance that has great import to the fairness and efficiency …

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 …

Life In The Sweatbox, Pamela Foohey, Robert M. Lawless, Katherine Porter, Deborah Thorne

Notre Dame Law Review

The time before a person files bankruptcy is sometimes called the financial “sweatbox.” Using original data from the Consumer Bankruptcy Project, we find that people are living longer in the sweatbox before filing bankruptcy than they have in the past. We also describe the depletion of wealth and well-being that defines people’s time in the sweatbox. For those people who struggle for more than two years before filing bankruptcy—the “long strugglers”—their time in the sweatbox is particularly damaging. During their years in the sweatbox, long strugglers deal with persistent collection calls, go without healthcare, food, and utilities, lose homes and …

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 …

The Sharing Economy As An Equalizing Economy, John O. Mcginnis

Notre Dame Law Review

Economic equality is often said to be the key problem of our time. But information technology dematerializes the world in ways that are helpful to the ninety-nine percent, because information can be shared. This Article looks at how one fruit of the information revolution—the sharing economy—has important equalizing features on both its supply and demand sides. First, on the supply side, the intermediaries in the sharing economy, like Airbnb and Uber, allow owners of housing and cars to monetize their most important capital assets. The gig aspect of this economy creates spot markets in jobs that have flexible hours and …

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 …

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. …

The Future Of State Blaine Amendments In Light Of Trinity Lutheran: Strengthening The Nondiscrimination Argument, Margo A. Borders

Notre Dame Law Review

In Part I, this Note will examine a brief history of the proposed federal Blaine Amendment, and the subsequent adoption of many State Blaines across the nation. Next, in Part II, the Note will discuss why the State Blaines are frequently debated, specifically in the context of the issue of school choice. The Note will then examine two of the main arguments against the constitutionality of State Blaines—the animus arguments and the First Amendment arguments—and will examine the strengths and weaknesses of each argument. In Part III, the Note will discuss the culmination of recent caselaw in the Trinity Lutheran …

Non-Merit-Based Tests Have No Merit: Restoring District Court Discretion Under § 1915(E)(1), John R. Fitzgerald

Notre Dame Law Review

This Note evaluates the circuit split regarding the provision of counsel in prisoner civil rights cases and proposes a uniform test. Part I describes the historical background of the right to counsel and prisoner litigation in the United States. Part II outlines the current circuit split regarding § 1915(e)(1). Part III explains why all district courts should consider merit and substance, using a case study to illustrate the deficiencies of non-merit-based tests. Part IV demonstrates why merit and substance are the best metrics for deciding when to provide counsel. Ultimately, this Note asserts that all district judges should consider: (1) …

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 …

Appraisal Arbitrage: In Case Of Emergency, Break Glass, Malaina J. Weldy

Notre Dame Law Review

Part I of this Note introduces the appraisal remedy, outlining its history, purpose, and modern justifications. It also details the procedural process for bringing an appraisal claim. Part II examines the rise of appraisal in its current arbitrage form, delving into the various reasons set forth to explain its rise, as well as how the recent amendments to the Delaware appraisal statute have addressed these issues. This Part also analyzes Delaware’s recent merger price “presumption” trend. Part III puts forth several arguments in light of this trend, with the intent that such arguments will both justify and protect the remedy’s …

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 …

Computationally Assisted Regulatory Participation, Michael A. Livermore, Vladimir Eidelman, Brian Grom

Notre Dame Law Review

With the increased politicization of agency rulemaking and the reduced cost of participating in the notice-and-comment rulemaking process, administrative agencies have, in recent years, found themselves deluged in a flood of public comments. In this Article, we argue that this deluge presents both challenges and opportunities, and we explore how advances in natural language processing technologies can help agencies address the challenges and take advantage of the opportunities created by the recent growth of public participation in the regulatory process. We also examine how scholars of public bureaucracies can use this important new publicly available data to better understand how …

Progressive Genetic Ownership, Jessica L. Roberts

Notre Dame Law Review

Recently, property law scholars have challenged neoclassical economic theory as the primary lens for understanding ownership. As an alternative to the all-too-familiar concepts of welfarism, rational choice theory, and cost-benefit analysis, they offer “progressive property,” a school of thought grounded in value pluralism, communitarianism, and redistribution. To date, much of the progressive property literature has focused exclusively on land use. This Article tests the versatility of this new property school by applying it to a novel context: genetic ownership. As with real property, discussions surrounding genetic ownership have been entrenched in the language of neoclassical economics. Given the proliferation of …

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 …

The American Deep State, Jon D. Michaels

Notre Dame Law Review

This Article, written for the Notre Dame Law Review Symposium on Administrative Lawmaking in the Twenty-First Century, considers the notion of bureaucratic depth and what it means in the American context. In what follows, I argue that the American deep state has very little in common with those regimes usually understood to harbor deep states; that, far from being shadowy or elitist, the American bureaucracy is very much a demotic institution, demographically diverse, highly accountable, and lacking financial incentives or caste proclivities to subvert popular will; that demotic bureaucratic depth of the American variety should be celebrated, not feared; …

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 …

Rejecting The De Minimis Defense To Infringement Of Sound Recording Copyrights, Michael G. Kubik

Notre Dame Law Review

Part I of this Note examines the history of sound recording copyrights, the role of digital sampling in the music industry, and the basic principles and functions of the de minimis defense. Part II carefully dissects the Bridgeport and VMG opinions. Part III then considers the merits of each opinion and concludes that Bridgeport reached the correct conclusion. This argument rests on the statutory scheme of Title 17 of the U.S. Code and the plain text of its applicable provisions, bolstered by their legislative history, giving life to a unique statutory creature that thrives in a manner inconsistent with traditional …