Supreme Court of the United States Commons^™

Tying Law For The Digital Age, Daniel A. Crane

Notre Dame Law Review

Tying arrangements, a central concern of antitrust policy since the early days of the Sherman and Clayton Acts, have come into renewed focus with respect to the practices of dominant technology companies. Unfortunately, tying law’s doctrinal structure is a self-contradictory and incoherent wreck. A conventional view holds that this mess is due to errant Supreme Court precedents, never fully corrected, that expressed hostility to tying based on faulty economic understanding. That is only part of the story. Examination of tying law’s origins and development shows that tying doctrine was built on a now-dated paradigm of what constitutes a tying arrangement. …

Admiralty, Abstention, And The Allure Of Old Cases, Maggie Gardner

Notre Dame Law Review

The current Supreme Court has made clear that history matters. But doing history well is hard. There is thus an allure to old cases because they provide a link to the past that is more accessible for nonhistorian lawyers. This Article warns against that allure by showing how the use of old cases also poses methodological challenges. The Article uses as a case study the emerging doctrine of foreign relations abstention. Before the Supreme Court, advocates argued that this new doctrine is in fact rooted in early admiralty cases. Those advocates did not, however, canvass the early admiralty practice, relying …

Pretrial Commitment And The Fourth Amendment, Laurent Sacharoff

Notre Dame Law Review

Today, the Fourth Amendment Warrant Clause governs arrest warrants and search warrants only. But in the founding era, the Warrant Clause governed a third type of warrant: the “warrant of commitment.” Judges issued these warrants to jail defendants pending trial. This Article argues that the Fourth Amendment Warrant Clause, with its oath and probable cause standard, should be understood today to apply to this third type of warrant. That means the Warrant Clause would govern any initial appearance where a judge first commits a defendant—a process that currently falls far short of fulfilling its constitutional and historical function. History supports …

Who Is A Minister? Originalist Deference Expands The Ministerial Exception, Jared C. Huber

Notre Dame Law Review

The ministerial exception is a doctrine born out of the Religion Clauses of the First Amendment that shields many religious institutions’ employment decisions from review. While the ministerial exception does not extend to all employment decisions by, or employees of, religious institutions, it does confer broad—and absolute—protection. While less controversy surrounds whether the Constitution shields religious institutions’ employment decisions to at least some extent, much more debate surrounds the exception’s scope, and perhaps most critically, which employees fall under it. In other words, who is a "minister" for purposes of the ministerial exception?

An Originalist Approach To Prospective Overruling, John O. Mcginnis, Michael Rappaport

Notre Dame Law Review

Originalism has become a dominant jurisprudential theory on the Supreme Court. But a large number of precedents are inconsistent with the Constitution’s original meaning and overturning them risks creating enormous disruption to the legal order. This article defends a prospective overruling approach that would harmonize precedent with originalism’s rise and reduce the disruption from overrulings. Under prospective overruling, the Court declares that an existing statute violates the original meaning but will continue to be enforced because declaring it unconstitutional would produce enormous costs; however, future statutes of this type will be voided as unconstitutional. Under our approach, the Court would …

Calling Balls And Strikes? Chief Justice Roberts In October Term 2019, Meghan Dalton

Notre Dame Law Review

Part I of this Note will outline the scope of the assignment power, focusing on the strategic considerations a Chief Justice can make in assigning opinions. Part II will analyze Roberts’s voting and assignment patterns in October Term 2019, specifically applying the earlier discussions to his assignment choices in three key cases decided this term. Part III will focus on Chief Justice Roberts’s jurisprudential values and explore how these concerns might have informed his decision making in October Term 2019. Finally, this Note concludes by asking to what extent Roberts’s recent assignment choices are consistent with his signature promise to …

State Rejection Of Federal Law, Thomas B. Bennett

Notre Dame Law Review

Sometimes the United States Supreme Court speaks, and states do not follow. For example, in 2003, the Arizona Supreme Court agreed to “reject” a decision of the U.S. Supreme Court, because no “sound reasons justif[ied] following” it. Similarly, in 2006, Michigan voters approved a ballot initiative that, according to the legislature that drafted it, sought “at the very least[] to ‘freeze’ the state’s . . . law to prevent” state courts from following a ruling of the U.S. Supreme Court. Surprising though this language may be, there is nothing nefarious about these cases. Cooper v. Aaron this is not. Unlike …

Recovering The Tort Remedy For Federal Official Wrongdoing, Gregory Sisk

Notre Dame Law Review

As the Supreme Court weakens the Bivens constitutional tort cause of action and federal officers avoid liability for unlawful behavior through qualified immunity, we should recollect the merit of the common-law tort remedy for holding the federal government accountable for official wrongdoing. For more than a century after ratification of the Constitution, federal officers who trespassed on the rights of American citizens could be held personally liable under common-law tort theories, but then routinely were indemnified by the government.

The modern Federal Tort Claims Act (FTCA) roughly replicates the original regime for official wrongdoing by imposing liability directly on the …

The Inconsistent Originalism Of Judge-Made Remedies Against Federal Officers, Stephen I. Vladeck

Notre Dame Law Review

Professor Carlos V´azquez and I have explained in depth why the Supreme Court’s evisceration of damages remedies for constitutional violations by federal officers is analytically and historically incoherent. And I have written elsewhere about the extent to which modern constitutional remedies doctrine has turned a remarkably blind eye to foundational principles of federalism—paying little more than lip service to the robust availability of common-law damages (and habeas) remedies against federal officers in state courts from the Founding through the Civil War—and, at least for damages, well into the twentieth century. I don’t mean to rehash (or relitigate) either argument here. …

Lessons For Bivens And Qualified Immunity Debates From Nineteenth-Century Damages Litigation Against Federal Officers, Andrew Kent

Notre Dame Law Review

This Essay was written for a symposium marking the fiftieth anniversary of the Supreme Court’s decision in Bivens v. Six Unknown Named Agents of Federal Bureau of Narcotics. As the current Court has turned against Bivens—seemingly confining it to three specific contexts created by Bivens and two follow-on decisions in 1979 and 1980—scholars and litigants have developed a set of claims to respond to the Court’s critique. The Court now views the judicially created Bivens cause of action and remedy as a separation-of-powers foul; Congress is said to be the institution which should weigh the costs and benefits …

Going Rogue: The Supreme Court's Newfound Hostility To Policy-Based Bivens Claims, Joanna C. Schwartz, Alexander Reinert, James E. Pfander

Notre Dame Law Review

In Ziglar v. Abbasi, 137 S. Ct. 1843 (2017), the Supreme Court held that a proposed Bivens remedy was subject to an exacting special factors analysis when the claim arises in a “new context.” In Ziglar itself, the Court found the context of the plaintiffs’ claims to be “new” because, in the Court’s view, they challenged “large-scale policy decisions concerning the conditions of confinement imposed on hundreds of prisoners.” Bivens claims for damages caused by unconstitutional policies, the Court suggested, were inappropriate.

This Essay critically examines the Ziglar Court’s newfound hostility to policy-based Bivens claims. We show that an …

Was Bivens Necessary?, Ann Woolhandler, Michael G. Collins

Notre Dame Law Review

Some federal common-law skeptics have provided criteria for keeping federal common law in check. Although not specifically addressing Bivensactions, Professor Nelson has argued that when engaged in federal common lawmaking, federal courts should see themselves as more tied to custom, general principles of the common law, and precedent, rather than seeing themselves as engaged in a freewheeling search for the best policy. This methodology makes federal common law less subject to criticism as usurping the lawmaking roles of other government actors. Professor Merrill has argued that federal common law needs to be specifically intended by the framers of a …

Bivens And The Ancien Régime, Carlos M. Vázquez

Notre Dame Law Review

This Essay considers the relevance for Bivens claims of the Court’s shift to a nouveau régime to address the implication of private rights of action under statutes. Part I describes and assesses the Court’s reasons for shifting to the nouveau régime in the statutory context. Part II explains why the Court’s shift to a nouveau régime for implying damage remedies under federal statutes does not justify a similar shift with respect to constitutional remedies. The Constitution’s omission of specific remedies for violation of the Constitution’s substantive provisions does not reflect the Founders’ belief that such remedies are unnecessary to give …

Stare Decisis As Authority And Aspiration, Randy J. Kozel

Notre Dame Law Review

The doctrine of stare decisis remains a defining feature of American law despite challenges to its legitimacy and efficacy. Even so, there is space between the role that stare decisis currently plays and the potential that it offers. The gap is evident in the jurisprudence of the U.S. Supreme Court. Though the Justices continue to underscore the fundamental status of stare decisis, the Court’s opinions sometimes seem quick to depart from precedents whose reasoning has fallen out of favor.

Using Bivens v. Six Unknown Named Agents as a case study, this Article explains how the Court can invigorate the doctrine …

A Scapegoat Theory Of Bivens, Katherine M. Crocker

Notre Dame Law Review

Some scapegoats are innocent. Some warrant blame, but not the amount they are made to bear. Either way, scapegoating can allow in-groups to sidestep social problems by casting blame onto out-groups instead of confronting such problems—and the in-groups’ complicity in perpetuating them—directly.

This Essay suggests that it may be productive to view the Bivens regime’s rise as countering various exercises in scapegoating and its retrenchment as constituting an exercise in scapegoating. The earlier cases can be seen as responding to social structures that have scapegoated racial, economic, and other groups through overaggressive policing, mass incarceration, and inequitable government conduct more …

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 …

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 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 …

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 …

Does Docket Size Matter? Revisiting Empirical Accounts Of The Supreme Court's Incredibly Shrinking Docket, Michael Heise, Martin T. Wells, Dawn M. Chutkow

Notre Dame Law Review

Drawing on data from every Supreme Court Term between 1940 and 2017, this Article revisits, updates, and expands prior empirical work by Ryan Owens and David Simon (2012) finding that ideological, contextual, and institutional factors contributed to the Court’s declining docket. This Article advances Owens and Simon’s work in three ways: broadening the scope of the study by including nine additional Court Terms (through 2017), adding alternative ideological and nonideological variables into the model, and considering alternative model specifications. What emerges from this update and expansion, however, is less clarity and more granularity and complexity. While Owens and Simon emphasized …

Stare Decisis And The Supreme Court(S): What States Can Learn From Gamble, Zachary B. Pohlman

Notre Dame Law Review

While almost all questions before the Supreme Court require statutory or constitutional interpretation, state courts of last resort occupy a unique place in the American judicial landscape. As common-law courts, state supreme courts are empowered to develop common-law doctrines in addition to interpreting democratically enacted texts. This Note argues that these two distinct state court functions—interpretation of statutes and constitutions, and common-law judging—call for two distinct approaches to stare decisis, a distinction that is often muddied in practice. Justice Thomas’s concurrence in Gamble v. United States provides the framework for each approach, a framework based on the genesis and development …

Public Rights After Oil States Energy, Adam J. Macleod

Notre Dame Law Review

The concept of public rights plays an important role in the jurisprudence of the Supreme Court of the United States. But as the decision in Oil States last Term revealed, the Court has often used the term to refer to three different concepts with different jurisprudential implications. Using insights drawn from historical and analytical jurisprudence, this Article distinguishes the three concepts and examines how each of them is at work in patent law. A precise reading of Oil States also bears lessons for other areas of law that implicate both private rights and duties and the administration of public, regulatory …

The Supreme Court Bar At The Bar Of Patents, Paul R. Gugliuzza

Notre Dame Law Review

Over the past two decades, a few dozen lawyers have come to dominate practice before the U.S. Supreme Court. By many accounts, these elite lawyers—whose clients are often among the largest corporations in the world—have spurred the Court to hear more cases that businesses care about and to decide those cases in favor of their clients. The Supreme Court’s recent caselaw on antitrust, arbitration, punitive damages, class actions, and more provides copious examples.

Though it is often overlooked in discussions of the emergent Supreme Court bar, patent law is another area in which the Court’s agenda has changed significantly in …

The Traditions Of American Constitutional Law, Marc O. Degirolami

Notre Dame Law Review

This Article identifies a new method of constitutional interpretation: the use of tradition as constitutive of constitutional meaning. It studies what the Supreme Court means by invoking tradition and whether what it means remains constant across the document and over time. Traditionalist interpretation is pervasive, consistent, and recurrent across the Court’s constitutional doctrine. So, too, are criticisms of traditionalist interpretation. There are also more immediate reasons to study the role of tradition in constitutional interpretation. The Court’s two newest members, Justices Neil Gorsuch and Brett Kavanaugh, have indicated that tradition informs their understanding of constitutional meaning. The study of traditionalist …

Setting Our Feet: The Foundations Of Religious And Conscience Protections, Hanna Torline

Notre Dame Law Review

This Note does not attempt to claim that religion and conscience are not moral equivalents, that they are not equally important, or that they do not require equal legal treatment. Nor does it attempt to claim the converse. Simply put, it argues that a consideration of the different foundations underlying conscience protections and religious protections should give pause to anyone arguing that the two are equivalent. This Note concludes that the rationales behind protecting religion and conscience are different enough to merit consideration in the debate. For if religion and conscience are treated as equivalents under the law, they will …

State Standing's Uncertain Stakes, Aziz Z. Huq

Notre Dame Law Review

I offer a quite modest contribution to debates on state standing. I do not offer “right answers.” Rather, I posit that it is useful to understand the “stakes” of state standing. By “stakes,” I mean the practical consequences of resolving, one way or another, the unsettled doctrinal choices respecting the ability of states to initiate a matter in federal courts. Why, that is, does state standing matter? An inquiry into stakes can usefully proceed stepwise. A first task is to identify the subset of state standing cases that presently elicit division among the Justices. A second task is to articulate …

Keynote Address: Staying Afloat And Engaged In Today's Flooded Marketplace Of Speech, Michael Y. Scudder

Notre Dame Law Review

The contributions to this Symposium cover substantial ground, address important issues, and offer much to react to. This Symposium, I submit, also occurs at a time of significance for the First Amendment in the Supreme Court. Perhaps the Court’s most fervent and consequential defender of free speech, Justice Anthony Kennedy, has retired. His impact on American constitutional law was enormous, including, in my view, in the area of free speech. I had the privilege of clerking for Justice Kennedy, admire him deeply as judge and person, and want to offer some reflections on what I see as a few of …

On "Clear And Present Danger", Leslie Kendrick

Notre Dame Law Review

Justice Oliver Wendell Holmes’s dissent in United States v. Abrams gave us the “marketplace of ideas” metaphor and the “clear and present danger” test. Too often unremarked is the contradiction between the two. At the same time that Holmes says “the best test of truth is the power of the thought to get itself accepted in the competition of the market,” he also says that “the present danger of immediate evil” permits Congress to restrict the expression of opinion. When the anticipated harm comes about through acceptance of the speaker’s idea, then the imposition of the clear and present danger …