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Notre Dame Law Review

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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.


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.


The Demise Of The Functionality Doctrine In Design Patent Law, Perry J. Saidman May 2017

The Demise Of The Functionality Doctrine In Design Patent Law, Perry J. Saidman

Notre Dame Law Review

The doctrine of functionality, in both the validity and infringement contexts, has outlived its usefulness, and analyzing it is a waste of litigants’ and judicial resources.


Strategies For Discerning The Boundaries Of Copyright And Patent Protections, Pamela Samuelson May 2017

Strategies For Discerning The Boundaries Of Copyright And Patent Protections, Pamela Samuelson

Notre Dame Law Review

When presented with copyright claims as to seemingly ambiguous subject matters, courts and the Copyright Office have developed several different responses. The most common has been a layering or segmentation approach under which courts treat some aspects of an intellectual creation as protectable by copyright law, while other aspects may be protectable, if at all, by utility patents. But five other strategies for determining copyright and utility patent boundaries are evident in the literature, each of which has sought to preserve separate and distinct domains for copyright and utility patent protections.


Trademarks And Digital Goods, Mark P. Mckenna, Lucas S. Osborn May 2017

Trademarks And Digital Goods, Mark P. Mckenna, Lucas S. Osborn

Notre Dame Law Review

This article argues that the question of whether we should treat digital files as relevant goods is irreducibly one of policy, and it should not be reduced to mere formalism. Digital files should be treated as goods only when consumers’ interactions with the files sufficiently resemble their interactions with physical goods that they warrant the same treatment. In particular, this article argues that digital files should be treated as goods only when the origin of the files as such (not the content of those files) is material to consumers. That may turn out to be relatively rare. Indeed, this article ...


Raising Walls Against Overlapping Rights: Preemption And The Right Of Publicity, Rebecca Tushnet May 2017

Raising Walls Against Overlapping Rights: Preemption And The Right Of Publicity, Rebecca Tushnet

Notre Dame Law Review

By comparing how preemption and First Amendment law have used purposive approaches to limit the right of publicity, we can see something about how boundary work in intellectual property law (IP) is done—badly, usually, with justifications that aren’t consistent or that assume that other regimes work differently than they actually do. One improvement would be to embrace categorical approaches, rather than unpredictable case-by-case balancing; both preemption and First Amendment doctrines can lend themselves to this approach. Another improvement would be to think of the First Amendment as an intellectual property regime of its own, one with general preemptive ...


Expired Patents, Trade Secrets, And Stymied Competition, W. Nicholson Price Ii May 2017

Expired Patents, Trade Secrets, And Stymied Competition, W. Nicholson Price Ii

Notre Dame Law Review

Patents and trade secrecy have long been considered substitute incentives for innovation. When inventors create a new invention, they traditionally must choose between the two. And if inventors choose to patent their invention, society provides strong legal protection in exchange for disclosure, with the understanding that the protection has a limit: it expires twenty years from the date of filing. At that time, the invention is opened to the public and exposed to competition.

This story is incomplete. Patent disclosure is weak and focuses on one technical piece of an invention—but that piece is often only a part of ...


Risk Regulation And Innovation: The Case Of Rights-Encumbered Biomedical Data Silos, Arti K. Rai May 2017

Risk Regulation And Innovation: The Case Of Rights-Encumbered Biomedical Data Silos, Arti K. Rai

Notre Dame Law Review

This Article discusses whether, and how, risk and social regulation can promote socially valuable innovation. The focus is on regulation as a force for creating a data infrastructure for future innovation. This Article briefly summarizes the history of overlapping and adjacent intellectual property rights in biomedical innovation. It then discusses the manner in which the Supreme Court’s reaction to such rights concentration may exacerbate legally-encumbered diagnostic data silos. It will go on to outlines the basic history of biopharmaceutical trial data silos as well as the core legal and policy arguments in favor of increasing access to the aggregated ...


Did Ebay Irreparably Injure Trademark Law?, Mark A. Lemley May 2017

Did Ebay Irreparably Injure Trademark Law?, Mark A. Lemley

Notre Dame Law Review

This Article argues that, while the Supreme Court's holding in eBay v. MercExchange was a good—indeed, great—development in patent and copyright law, trademark is different. The purposes of trademark law—and whom it benefits—should lead us to treat trademark injunctions differently than patent and copyright injunctions. Further, trademark courts have misinterpreted eBay, treating each of the four factors the Court enumerated as a requirement rather than a consideration. That is a particular problem in trademark law, where proof of future injury can be elusive. And perhaps most remarkably, courts have expanded eBay in trademark cases at ...


Territorial Overlaps In Trademark Law: The Evolving European Model, Graeme B. Dinwoodie May 2017

Territorial Overlaps In Trademark Law: The Evolving European Model, Graeme B. Dinwoodie

Notre Dame Law Review

Courts in the European Union have in a number of recent cases resisted some of the innovations of the EU system and have affirmed the enduring pull of a different conception of territoriality. This Article defends many of these acts of resistance, and supports further modifications of the EU model, in part because of the increased problem of overlapping rights. That increased overlap requires a critical reading of these innovative mechanisms and attention to a broader range of values in implementing the model. These propositions are supported both by a more theoretically complex conception of trademark territoriality and a richer ...


Bankruptcy's Gray Area: Are Bankruptcy Courts "Courts Of The United States"?, Angelo G. Labate May 2017

Bankruptcy's Gray Area: Are Bankruptcy Courts "Courts Of The United States"?, Angelo G. Labate

Notre Dame Law Review

This Note seeks to evaluate the circuit split regarding the status of bankruptcy courts and propose a solution to the problem through an efficiency-based lens. After laying out a brief history of bankruptcy in the United States and the current bankruptcy system and outlining the circuit split within the courts of appeals as to the proper definition of “courts of the United States,” this Note will analyze the statutory language, the United States Code, and the relevant historical context to determine if the bankruptcy courts qualify as “courts of the United States.” This Note will argues that the bankruptcy courts ...


The Legality Of Class Action Waivers In Employment Contracts, Benjamin M. Redgrave May 2017

The Legality Of Class Action Waivers In Employment Contracts, Benjamin M. Redgrave

Notre Dame Law Review

This Note attempts to bring clarity to the questionable legality of class action waivers in employment contracts by examining the two competing statutes at issue—the National Labor Relations Act (NLRA) and the Federal Arbitration Act (FAA)—the Supreme Court’s cases on the issue, and the arguments for and against such waivers advanced by the Second, Fifth, Seventh, Eighth, and Ninth Circuits, which have all directly addressed the question. After providing an overview of these two statutes, the agency that administers the NLRA, and the evolution of the Supreme Court’s jurisprudence on the topic, this Note discusses the ...


"Major Questions" As Major Opportunities, Riley T. Svikhart May 2017

"Major Questions" As Major Opportunities, Riley T. Svikhart

Notre Dame Law Review

The future of the major question exception is a live question in the wake of King v. Burwell. This Note calls on federal courts to embrace the exception, for where a toothless nondelegation doctrine has failed to curtail the ceaseless growth of executive power experienced over the past century, a more aggressively applied major question exception can succeed in ensuring that policy questions of the deepest “economic and political significance” are left exclusively to the people’s representatives in Congress. In declining to defer to an executive agency’s interpretation of an ambiguous statute, federal courts must themselves assume “the ...


Justice Scalia, The Nondelegation Doctrine, And Constitutional Argument, William K. Kelley May 2017

Justice Scalia, The Nondelegation Doctrine, And Constitutional Argument, William K. Kelley

Notre Dame Law Review

This Essay canvasses Justice Scalia’s approach to the nondelegation doctrine by examining his two most prominent opinions in that field, Mistretta and Whitman. It goes on to critically examine the nature of the arguments he makes in those cases, and what his approach has to tell us about his overall approach to the judicial role.