Law Commons^™

Taxing Local Energy Externalities, Hannah J. Wiseman

Notre Dame Law Review

There is a fundamental problem of scale in the governance of industrial development. For some of the fastest-growing U.S. industries, the negative impacts of development fall primarily at the local level, and the benefits tend to accrue more broadly to states and the federal government. These governments accordingly have inadequate incentives to address the very localized negative externalities of development. Yet states also increasingly preempt most local control over some forms of development. This creates a regulatory void, in which state and federal regulations are inadequate, and local governments lack the power to use traditional Pigouvian tools such as regulation, …

The Problem Of Foreign Convictions In U.S. Immigration Law, Geoff Cebula

Notre Dame Law Review

Part I argues that the definition of “conviction” in the INA implicitly leaves room for courts to inquire into the procedural fairness underlying a foreign conviction. Part II surveys the traditional standards for evaluating the sufficiency of foreign convictions in the contexts of extradition and international comity, two areas where U.S. courts have had to decide when to honor foreign judgments for centuries. These longstanding criteria formed the background against which the INA definition was adopted and may provide guidance on how to apply this definition. Accordingly, Part III derives from this analysis suggestions for how the Department of State …

Constitutional Law's Conflicting Premises, Maxwell L. Stearns

Notre Dame Law Review

Doctrinal inconsistency is constitutional law’s special feature and bug. Virtually every salient doctrinal domain presents major precedents operating in tension. Bodies of precedent are rarely abandoned simply because a newer strand makes an older one appear out of place. And when an earlier strand is redeployed or substituted, the once-newer strand likewise persists. This dynamic process tasks law students, often for the first time, with reconciling the seemingly irreconcilable.

These doctrinal phenomena share as their root cause dual persistent conflicting premises. Some examples: Standing protects congressional power to monitor the executive branch, or it limits congressional monitoring when the selected …

Forgotten Federal-Missionary Partnerships: New Light On The Establishment Clause, Nathan S. Chapman

Notre Dame Law Review

Americans have long debated whether the Establishment Clause permits the government to support education that includes religious instruction. Current doctrine permits states to do so by providing vouchers for private schools on a religiously neutral basis. Unlike most Establishment Clause doctrines, however, the Supreme Court did not build this one on a historical foundation. Rather, in cases from Everson v. Board of Education (1947) to Espinoza v. Montana Department of Revenue (2020), opponents of religious-school funding have claimed American history supports a strict rule of no-aid.

Yet the Court and scholars have largely ignored a practice that casts light on …

A Case For Zoning, Christopher Serkin

Notre Dame Law Review

Due to a remarkable convergence of criticisms from both the right and the left, zoning is under more sustained attack than at any time in the last seventy-five years. A consensus is building that zoning is what ails America. Simultaneously, the traditional justifications for zoning, like separating incompatible uses, have become increasingly anachronistic in an age of mixed-use development and a desire for vibrant, dynamic places. This Article offers an updated defense of zoning, and in particular density regulations. Today, local governments deploy zoning not primarily to keep industry (or apartment buildings) out of residential neighborhoods, but to preserve community …

Fraudulently Induced Confessions, Michael J. Zydney Mannheimer

Notre Dame Law Review

The jurisprudence on the use of police deception during interrogations is singularly unhelpful. Police may deceive in order to induce a suspect to confess, the courts tell us, unless they go too far. Police are permitted, for example, to feign sympathy for the suspect, lie about the existence of incriminating evidence, and falsely downplay the seriousness of the offense under investigation. But when police engage in other forms of deception, such as by offering false promises of leniency or misrepresenting the suspect’s Miranda rights, courts will balk and declare the resulting confession coerced. Yet neither courts nor commentators have successfully …

Substantive Remedies, Hanoch Dagan, Avihay Dorfman

Notre Dame Law Review

Often, private law remedies enforce or vindicate infringed underlying rights. Substantive remedies are different. Substantive remedies do not aim at restoring these rights; nor do they seek to change them. Instead, substantive remedies adjust the remedial response for a right violation so as to ensure post-wrong justice. They require the law of remedies not merely to look back, but rather to take a second look at the parties’ post-wrong situation. At times, such a second look affects the type of remedy awarded (damages in lieu of injunctive relief); in other cases—for instance, the tort doctrine of crushing liability—it imposes a …

Chevron Abroad, Kent Barnett, Lindsey Vinson

Notre Dame Law Review

This Article presents our comparative findings of how courts in five other countries review agency statutory interpretation. These comparisons permit us to understand and participate better in current debates about the increasingly controversial Chevron doctrine in American law, whereby courts defer to reasonable agency interpretations of statutes that an agency administers. Those debates concern, among other things, Chevron’s purported inevitability, functioning, and normative propriety. Our inquiry into judicial review in Germany, Italy, the United Kingdom, Canada, and Australia provides useful and unexpected findings. Chevron, contrary to some scholars’ views, is not inevitable because only one of these countries …

Enforcing A Wall Of Separation Between Big Business And State: Protection From Monopolies In State Constitutions, Alexandra K. Howell

Notre Dame Law Review

The goal of this Note is not to convince the reader to care more about regulatory monopolies than private ones. In fact, it is not to talk about private antitrust law at all. Instead, the goal is to put today’s concern with monopolies in historical perspective. Part I traces the history of the antimonopoly spirit in the United States starting with the English tradition that was highly influential on the Founders. This Note then demonstrates that today’s concern with private monopolies comes from a shift that took place during the progressive era. In Part II, this Note highlights the role …

Class Action Squared: Multistate Actions And Agency Dilemmas, Elysa M. Dishman

Notre Dame Law Review

As the Supreme Court continues to restrict the reach of private class actions, numerous commentators have championed public enforcement actions by state attorneys general (AGs) as a superior alternative to hold corporations accountable for misconduct. While AG actions fill some of the void left by the forced retreat of the private class action, few scholars have seriously considered whether the agency problems that exist in private class actions also occur in AG actions. And, until now, no scholar has recognized the unique agency problems that arise when AGs act together in multistate actions.

Multistate actions are made up of two …

Is The Federal Reserve Constitutional? An Originalist Argument For Independent Agencies, Christine Kexel Chabot

Notre Dame Law Review

Originalists have written off the Federal Reserve’s independent monetary policy decisions as an unconstitutional novelty. This Article demonstrates that the independent structure of the Federal Reserve dates back to a Founding-era agency known as the Sinking Fund Commission. Like the Federal Reserve, the Commission conducted open market purchases of U.S. securities with substantial independence from the President. The Commission’s independent structure was proposed by Alexander Hamilton, passed by the First Congress, and signed into law by President George Washington. Their decisions to create an independent Commission with multiple members to check the President and one another—and to include the Vice …

From Humphrey's Executor To Seila Law: Ending Dual Federal Antitrust Authority, Alyson M. Cox

Notre Dame Law Review

This Note catalogues and proposes solutions to both the traditional concerns of efficiency and fairness and the modern constitutional problems posed by the current dual enforcement structure. Part I will compare the two antitrust agencies on the basis of their structures, accountability, statutory authority, and enforcement procedures, as well as evaluate potential concerns with vesting either agency with the sole authority to enforce civil antitrust laws. Part II will evaluate the perils of the current dual enforcement structure, exploring both the traditional arguments about efficiency and fairness and the modern constitutional challenges. Part III will evaluate potential legislative solutions to …

The Historical Origins Of Judicial Religious Exemptions, Stephanie H. Barclay

Notre Dame Law Review

The Supreme Court has recently expressed a renewed interest in the question of when the Free Exercise Clause requires exemptions from generally applicable laws. While scholars have vigorously debated what the historical evidence has to say about this question, the conventional wisdom holds that judicially created exemptions would have been a new or extraordinary means of protecting religious exercise—a sea change in the American approach to judicial review when compared to the English common law.

This Article, however, questions that assumption and looks at this question from a broader perspective. When one views judicial decisions through the lens of equitable …

Irreconcilable Differences: The Thresholds For Armed Attack And International Armed Conflict, Laurie R. Blank

Notre Dame Law Review

This Article explores the gap between the definition of armed attack and the threshold for international armed conflict to identify such possible consequences of the different definitions for the application of either or both bodies of law and to consider whether efforts to reconcile the different meanings are feasible and, more importantly, desirable or problematic. The first Part briefly presents the definition of armed attack and the threshold for international armed conflict, with a focus on the purpose of the particular thresholds and definitions for the two terms in order to provide a foundation for the main comparisons and discussion …

The Double Standard For Third-Party Standing: June Medical And The Continuation Of Disparate Standing Doctrine, Brandon L. Winchel

Notre Dame Law Review

No jurisdictional principle is more fundamental to the federal judiciary than the doctrine of standing. Before litigants may avail themselves of the tremendous power vested in the federal judiciary, plaintiffs must first establish that they are appropriately situated to assert a legal claim before a court. In analyzing whether a plaintiff possesses the requisite standing to maintain a legal challenge, the Supreme Court has stressed that a court’s analysis must be blind to the underlying dispute: “The fundamental aspect of standing is that it focuses on the party seeking to get his complaint before a federal court and not on …

The Remand Power And The Supreme Court's Role, Aaron-Andrew P. Bruhl

Notre Dame Law Review

“Reversed and remanded.” Or “vacated and remanded.” These familiar words, often found at the end of an appellate decision, emphasize that an appellate court’s conclusion that the lower court erred generally does not end the litigation. The power to remand for further proceedings rather than wrap up a case is useful for appellate courts because they may lack the institutional competence to bring the case to a final resolution (as when new factual findings are necessary) or lack an interest in the fact-specific work of applying a newly announced legal standard to the particular circumstances at hand. The modern Supreme …

Distinguishing Permissible Preemption From Unconstitutional Commandeering, Edward A. Hartnett

Notre Dame Law Review

For years, the preemption doctrine and the anticommandeering doctrine lived in an uneasy tension, with each threatening to consume the other. On the one hand, preemption permits Congress to insist that state law give way to congressional demands. On the other hand, the anticommandeering doctrine prohibits Congress from commandeering state legislatures or state executives. Without some way to establish a boundary between the two, preemption could swallow the anticommandeering doctrine by allowing Congress to control state law. Alternatively, absent some boundary, anticommandeering could swallow preemption by empowering states to refuse to be governed by the commands of federal law. Either …

The Role Of "Commercial Morality" In Trade Secret Doctrine, Lynda J. Oswald

Notre Dame Law Review

The approaching anniversary of E.I. duPont deNemours & Co. v. Christopher is the impetus for this exploration and evaluation of the role of “commercial morality” in trade secret misappropriation doctrine. Christopher is the well-known industrial espionage case in which the U.S. Court of Appeals for the Fifth Circuit held that flying an airplane over an under-construction manufacturing facility to take photos of briefly-but-inevitably exposed trade secrets was an “improper means” of accessing a trade secret and was contrary to standards of “commercial morality.”

Commercial morality has played a significant but shifting role in trade secret law over the past seven …

A Workable Substantive Due Process, Timothy M. Tymkovich, Joshua Dos Santos, Joshua J. Craddock

Notre Dame Law Review

In this Article, we have three objectives. First, we’d like to add our own conceptualization of the various flavors of due process adjudication. Our aim here is not to add a new theory, but to explain what exists in new ways— to put all the pieces of the due process puzzle together and explain how they relate to each other. To the surprise of some, perhaps, we find a small kernel of originalist truth within current forms of substantive due process. In short, the “shocks the conscience” strand of substantive due process jurisprudence prohibits some egregious torts by the state. …

The Great Writ And Federal Courts: Judge Wood's Solution In Search Of A Problem, William H. Pryor Jr.

Notre Dame Law Review

Judge Diane Wood provides, in her characteristically efficient prose, a thoughtful overview of the history of the Great Writ in service of a thesis that her essay otherwise fails to support. Judge Wood invokes Judge Henry Friendly’s classic article, Is Innocence Irrelevant? Collateral Attack on Criminal Judgments, to suggest that the writ of habeas corpus should be expanded to allow federal courts to review the petitions of state prisoners who allege their actual innocence without otherwise identifying any violation of federal law in securing their convictions. But that thesis cannot be squared with the proposal Judge Friendly championed in …

Certification Comes Of Age: Reflections On The Past, Present, And Future Of Cooperative Judicial Federalism, Kenneth F. Ripple, Kari Anne Gallagher

Notre Dame Law Review

In 1995, the American Judicature Society (AJS) undertook a comprehensive survey of certification. This Article uses the AJS’s survey as a starting point to examine the development of certification over the past twenty-five years. Were the fears of its critics well founded, or have the federal and state judiciaries adapted to mitigate the shortcomings of certification? Has certification been a useful tool in allowing for development of state law by the state judiciary, or has it been an imposition on the judiciary of a coequal sovereign?

Beyond these questions, this Article also will look at how certification has expanded beyond …

A Survivor's Perspective: Federal Judicial Selection From George Bush To Donald Trump, Leslie H. Southwick

Notre Dame Law Review

Over recent decades, federal judicial selection controversies are worsening in their frequency and intensity. They distort all three branches of government. My particular concern is with federal judicial selection for judgeships below the Olympian heights of those on the United States Supreme Court, namely, the judges on the twelve regional circuit courts of appeals and the ninety-four district courts.

The depth of partisan acrimony over judicial confirmations has placed us in the infernal regions, and we seem to be continuing our descent. Analyzing how we got there is invariably affected by the biases, or more gently, by the perspectives of …

Adequate And Effective: Postconviction Relief Through Section 2255 And Intervening Changes In Law, Ethan D. Beck

Notre Dame Law Review

This Note begins in Part I by providing a general introduction to modern postconviction relief, with special attention to the interaction between habeas corpus petitions and the § 2255 motion that performs much of the work traditionally assigned to the habeas writ. Section I.A begins to describe the debate in the federal circuit courts over the proper scope of the clause of § 2255 with which this Note is primarily concerned, the so-called “savings clause” of § 2255(e). Section I.B relates the importance of correctly construing the savings clause, as well as the dangers of a split in circuit interpretation …

Toward A More Apparent Approach To Considering The Admission Of Expert Testimony, Thomas D. Schroeder

Notre Dame Law Review

This Article highlights lingering confusion in the caselaw as to the proper standard for the trial court’s discharge of its gatekeeping role for the admission of expert testimony. The Article urges correction of the faulty application of Daubert’s admonition as to “shaky but admissible” evidence as a substitute for proper discharge of the trial court’s gatekeeper function under Rule 104(a). The Article concludes with several suggestions for trial and appellate courts to consider for better decisionmaking in discharging their duty to apply Rule 104(a)’s preponderance standard to the elements of Rule 702.

Only Where Justified: Toward Limits And Explanatory Requirements For Nationwide Injunctions, Milan D. Smith Jr.

Notre Dame Law Review

In Part I of this Article, I discuss the existing law and current debates surrounding nationwide injunctions. I consider the origins of both the apparent recent surge in the issuance of nationwide injunctions and the apparent recent surge in skepticism concerning nationwide injunctions. In Part II, I analyze the potential justification for issuance of a nationwide injunction that I find most compelling, and on which basis I argue a court is well within the bounds of Article III notwithstanding the indirect benefits of such injunction to nonparties. In Part III, I consider three other sometimesasserted justifications that I argue courts …

The Vra At A Crossroads: The Ability Of Section 2 To Address Discriminatory Districting On The Eve Of The 2020 Census, Ben Boris

Notre Dame Law Review

Part I of this Note begins by examining the background of the VRA. In Part I, this Note will briefly summarize the Act’s relationship with the Fifteenth Amendment and the circumstances that prompted its enactment, and detail the development of both section 2 and section 5 of the Act, as they have been used to combat vote discrimination. Part I will also discuss recent Supreme Court decisions that have limited the strength of the Act and set the stage for an analysis of the Act’s inability to combat discriminatory districting.

Part II will highlight two shortcomings of the Act to …

A Different Kind Of Prisoner's Dilemma: The Right To The Free Exercise Of Religion For Incarcerated Persons, Daniel T. Judge

Notre Dame Law Review

Part I will lay the foundation for the constitutional right to freedom of religion in the United States. It will explain how the Framers understood the right in the lead up to, and at the time of, the ratification of the Free Exercise Clause as part of the Bill of Rights. Part I will also address more modern advances in religious liberty protections for prisoners before discussing two recent milestones: the Religious Land Use and Institutionalized Persons Act and the Supreme Court’s decision in Holt v. Hobbs. Part II addresses the right to freedom of religion internationally. It begins …

"Of Substantial Religious Importance": A Case For A Deferential Approach To The Ministerial Exception, Allison H. Pope

Notre Dame Law Review

This Note argues that, in order to remain consistent with the Religion Clauses’ protection of religious autonomy, civil courts must defer to the religious group’s determination of which of its employees play a role “of substantial religious importance” within the organization in carrying out its religious mission under its tenets, and are therefore “ministers,” rather than investigate and make that determination themselves. Part I provides background information on the First Amendment and an overview of the circuit court and Supreme Court decisions that laid the foundation for, built, adopted, and applied the ministerial exception as described in Hosanna-Tabor. Part …

The Enduring Challenges For Habeas Corpus, Diane P. Wood

Notre Dame Law Review

Habeas corpus law has not remained static during the half century since Judge Friendly wrote, but neither has it provided satisfactory answers to the problems that he highlighted in his article. Unfortunately, many of the changes—well intended as they were by the enactors and implementers— have done nothing but create endless hurdles, loops, and traps for potential users. Enormous resources are poured into this elusive remedy. The rule of law is not well served when people are told that they have a remedy, but in fact they do not. Far better to have truth-in-labeling, so that the cases that deserve …

The Invisible Prison: Pathways And Prevention, Margaret F. Brinig, Marsha Garrison

Notre Dame Law Review

In this Article, we propose a new strategy for curbing crime and delinquency and demonstrate the inadequacy of current reform efforts. Our analysis relies on our own, original research involving a large, multigenerational sample of unmarried fathers from a Rust Belt region of the United States, as well as the conclusions of earlier researchers.

Our own research data are unusual in that they are holistic and multigenerational: the court-based record system we utilized for data collection provided detailed information on child maltreatment, juvenile status and delinquency charges, child support, parenting time, orders of protection, and residential mobility for focal children …