Law Commons^™

Guns, Analogies, And Constitutional Interpretation Across Centuries, Frederick Schauer, Barbara A. Spellman

Notre Dame Law Review

In New York State Rifle & Pistol Ass’n v. Bruen, the Supreme Court acknowledged the difficulties in applying its constitutional originalism to the question of firearms regulation. After all, the fully automatic assault rifles whose sale, possession, and use lie at the center of many contemporary debates about gun control and the Second Amendment simply did not exist in 1791, when the Second Amendment was ratified. Nor did they exist in 1868, when the Fourteenth Amendment, the vehicle for applying the Second Amendment to the states, was added to the Constitution. The firearms that existed in 1791 were largely …

The General-Law Right To Bear Arms, William Baude, Robert Leider

Notre Dame Law Review

In this Article, we argue that Bruen's intended methodological shift has been widely misunderstood by the bench and bar. This has led to confusion and misapplication in the lower courts, as well as much scholarly criticism of the test that is, we think, misdirected. As we will explain, Bruen calls for a form of legal originalism, applying a classical view of fundamental rights as a form of unwritten customary law. This is consistent with the text and history of the Constitution and leads to results that are less mechanical and more sensible than many lower courts have thought. Understanding …

Bruen’S Enforcement Puzzle: Unearthing And Adjudicating The Historical Enforcement Record In Second Amendment Cases, Andrew Willinger

Notre Dame Law Review

The Supreme Court’s 2022 decision in New York State Rifle & Pistol Ass’n v. Bruen brings historical complexity to the fore by instituting a history-focused test for the Second Amendment that demands analogues from the Founding or Reconstruction eras to support modern gun regulations. The majority opinion in Bruen considers, in multiple places, how certain historical gun regulations may have been enforced. In each instance, the Court suggests that evidence of racially disparate enforcement of a historical law is relevant to whether that law is part of the American historical tradition and an appropriate analogue. Historical enforcement data appear to …

Technology, Tradition, And “The Terror Of The People”, Darrell A.H. Miller, Alexandra Filindra, Noah Kaplan

Notre Dame Law Review

In New York State Rifle & Pistol Ass’n v. Bruen, the Supreme Court mandated a text, history, tradition, and analogy–only approach to Second Amendment cases.

No longer can policymakers rely on empirical data alone to carry their litigation burden. Now such data must conform to a still-emerging “historical tradition of firearm regulation” to meet constitutional muster. Some despair that reams of data, careful experiments, and rigorous statistical analyses no longer have any relevance to the gun debate.

But those that claim that Bruen signals the end of empirically grounded policy solutions badly misread the opinion. Empirical studies can still …

Patent Law’S Role In Protecting Public Health, Sean B. Seymore

Notre Dame Law Review

Innumerable inventions implicate public health—including drugs, vaccines, dietary supplements, and sewage treatment plants. Over the past century, the Patent Office and the courts have modulated the ability to obtain or enforce patents for these inventions—whether in response to a public health crisis or to protect the credulous public from unscrupulous inventors. While normative and policy-based arguments can justify these interventions, they’ve disrupted the delicate balance of two competing policy objectives in patent law—enhancing public welfare and promoting innovation. This Article offers a new approach for courts to protect public health in patent cases—by making public health an affirmative defense to …

The Incoherence Of Evidence Law, G. Alexander Nunn

Notre Dame Law Review

What is the purpose of evidence law? The answer might seem intuitive. Evidence law exists, of course, to foster verdict accuracy, legitimacy, and efficiency. But these kindred aims often come into conflict. Policy tradeoffs are inescapable in evidence law, meaning that an evidentiary regime must clarify how its normative objectives cohere. Do accuracy, legitimacy, and efficiency work together on equal footing, such that the goal of a code is to maximize each objective to the extent possible? Or does one of evidence law’s aims take precedence over the rest? And if one goal takes priority, what is the role of …

Elastic Batch And Bellwether Proceedings In Mass Arbitration, Bennett Rogers

Notre Dame Law Review

This Note will first succinctly review the history of aggregative litigation, including the decline of traditional Rule 23 class actions, the proliferation of arbitration agreements, and both the legislative and judicial support for this change. Next, it will examine plaintiffs’ response to the rise of arbitration with the creation of mass arbitration networks and explain why some companies started to move away from arbitration. Then it will consider the defense bar’s response to mass arbitration with batch and bellwether proceedings, examine the current bellwether arbitration cases moving through the courts, and introduce the latest arbitral institution making headways with its …

Strengthening State Constitutions, Jared C. Huber

Notre Dame Law Review

This Note argues that state constitutions should have more difficult amendment procedures than most states currently do. Part I highlights the ease of amending most state constitutions by evaluating state constitutional amendment procedures. Next, Part II argues that because constitutions are fundamental, organizing laws, their amendment procedures should reflect such status. Finally, Part III of this Note examines state constitutional amendments that resulted from national political turmoil and argues amendment procedures should be stringent enough to temper such reactionism. If a constitution is to be a constitution, it must be resilient enough to function as one. State constitutions largely fail …

Historical Fact, Ryan C. Williams

Notre Dame Law Review

The growing emphasis on history as a criterion of constitutional decision-making in Supreme Court jurisprudence has raised the importance of a distinctive type of judicial fact-finding—namely, the investigation and resolution of contested questions of historical fact. Although history has always played an important role in constitutional adjudication, its primary role has traditionally been as an input to constitutional interpretation. But in cases like New York State Rifle & Pistol Ass’n v. Bruen, the Court has increasingly demanded that factual determinations regarding the content, meaning, purposes, and effects of decisions taken in the distant past should also guide the lower …

Diverse Originalism, History & Tradition, Christina Mulligan

Notre Dame Law Review

The Supreme Court’s New York State Rifle & Pistol Ass’n v. Bruen decision appears to be an originalist opinion, ostensibly looking for the meaning of the Constitution’s text by looking to the public’s understanding of the language used. But Bruen's test actually fails to follow a public meaning originalist methodology. The Court focuses present-day constitutional interpreters on evidence of constitutional meaning that only reflects a portion of the public—the politically empowered men who were in a position to pass legislation. Two unfortunate outcomes follow. First, by limiting potential evidence of public meaning so severely, the Court raises the risk …

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. …

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 …

Intellectual Property And The Myth Of Nonrivalry, James Y. Stern

Notre Dame Law Review

The concept of rivalry is central to modern accounts of property. When one per-son’s use of a resource is incompatible with another’s, a system of rights to determine its use may be necessary. It is commonly asserted, however, that informational goods like inventions and expressive works are nonrivalrous and that intellectual property rights must therefore be subject to special limitation, if they should even exist at all. This Article examines the idea of rivalry more closely and makes a series of claims about the analysis of rivalrousness for purposes of such arguments. Within that frame-work, it argues that rivalry should …

Rethinking Legislative Facts, Haley N. Proctor

Notre Dame Law Review

As the factual nature of legal inquiry has become increasingly apparent over the past century, courts and commentators have fallen into the habit of labeling the facts behind the law “legislative facts.” Loosely, legislative facts are general facts courts rely upon to formulate law or policy, but that definition is as contested as it is vague. Most agree that legislative facts exist in some form or another, but few agree on what that form is, on who should find them, and how. This Article seeks to account for and resolve that confusion. Theories of legislative fact focus on the role …

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 …

Climate Zoning, Christopher Serkin

Notre Dame Law Review

As the urgency of the climate crisis becomes increasingly apparent, many local governments are adopting land use regulations aimed at minimizing greenhouse gas (GHG) emissions. The emerging approaches call for loosening zoning restrictions to unlock greater density and for strict new green building codes. This Article argues that both approaches are appropriate in some places but not in others. Not all density is created equal, and compact multifamily housing at the urban fringe may actually in-crease GHG emissions. Moreover, where density is appropriate, deregulation will not necessarily produce it. And, finally, green building codes will increase housing costs and so …

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?

Common Law Statutes, Charles W. Tyler

Notre Dame Law Review

The defining feature of a “common law statute” is that it resists standard methods of statutory interpretation. The category includes such important federal statutes as the Sherman Act, § 1983, and the Labor Management Relations Act, among others. Despite the manifest significance of common law statutes, existing caselaw and legal scholarship lack a minimally defensible account of how courts should decide cases arising under them. This Article supplies such an account. It argues that judges should decide cases arising under common law statutes by applying rules representing a consensus among American courts today—i.e., rules that jurisdictions generally have in common. …

The Conferred Jurisdiction Of The International Criminal Court, Leila Nadya Sadat

Notre Dame Law Review

After twenty years of operation, we know that the International Criminal Court (ICC) works in practice. But does it work in theory? A debate rages regarding the proper conceptualization of the Court’s jurisdiction. Some have argued that the ICC’s jurisdiction is little more than a delegation by states of a subset of their own criminal jurisdiction. They contend that when states ratify the Rome Statute, they transfer some of their own prescriptive or adjudicative criminal jurisdiction to the Court, meaning that the Court cannot do more than the state itself could have done. Moreover, they argue that these constraints are …

Preventing Undeserved Punishment, Marah Stith Mcleod

Notre Dame Law Review

Defendants should not be punished more than they deserve. Sentencing scholars describe this precept against undeserved punishment as a consensus norm in American law and culture. Yet America faces a plague of mass incarceration, and many sanctions seem clearly undeserved, often far exceeding an offender’s culpability or the seriousness of an offense. How can a society committed to desert as a limitation on legitimate sanctions allow such undeserved punishments?

Critics argue increasingly that our focus on what offenders deserve is itself part of the problem. They claim that the notion of desert is too amorphous, malleable, and arbitrary to limit …

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 …

Converse-Osborn: State Sovereign Immunity, Standing, And The Dog-Wagging Effect Of Article Iii, Carlos M. Vázquez

Notre Dame Law Review

“[T]he legislative, executive, and judicial powers, of every well constructed government, are co-extensive with each other . . . . [T]he judicial department may receive from the Legislature the power of construing every . . . law [which the Legislature may constitutionally make].” Chief Justice Marshall relied on this axiom in Osborn v. Bank of the United States to stress the breadth of the federal judicial power: the federal courts must have the potential power to adjudicate any claim based on any law Congress has the power to enact. In recent years, however, the axiom has sometimes operated in the …

State Officers And The Enforcement Of Federal Law, Charlie Nugent

Notre Dame Law Review

There is an unresolved question whether the state enforcement of federal law is compatible with the structure of government that the Constitution creates for the United States. Commentators have advanced two diametrically opposed positions to justify the state enforcement of federal law. The “federal delegation” position maintains that federal executive power is the only executive power that can perform federal executive functions. Proponents of this position argue that, when state officers enforce federal law, they exercise federal executive power at the pleasure of the President. This federal delegation position, however, has not been adequately defended. There is no clear reason …

Harmful Precautions, Ronen Perry

Notre Dame Law Review

According to the conventional definition of reasonableness, commonly known as the Hand formula, a person acts unreasonably (hence negligently) toward another if they fail to take precautions whose cost for the actor is lower than the expected loss for the other that these precautions can prevent.1 While law-and-economics theorists have advocated and courts have often embraced adjustments to both sides of this algebraic formulation,2 the idea that the expected loss must be compared with the cost of precautions for the potential injurer has remained mostly uncontested.3 This Article unveils an overlooked yet fundamental flaw in the orthodox understanding and application …

Disfavoring Statutory Parentheses (Except In Certain Circumstanaces), Zachary A. Damir

Notre Dame Law Review

Parentheses in statutes have been at issue in an increasing number of court cases, even at the Supreme Court. Parentheses have a slightly different story from other punctuation marks and they have been used consistently throughout legal history. The Federal Constitution, early statutes, and a large part of our modern state and federal law separate words from their sentences using parentheses. But if a parenthetical conflicts with the material outside of the parentheses, it is the current practice to discard the interior text as surplus-age, even though the legislature may have had a reason to include that text in a …

The Myth Of The Federal Private Nondelegation Doctrine, Alexander Volokh

Notre Dame Law Review

Judges and scholars have often claimed that delegations of governmental power to private parties are constitutionally prohibited. However, such a “private nondelegation doctrine” is elusive, if not nonexistent. To understand why, first we need to realize that there are actually several distinct nondelegation doctrines. I develop a taxonomy that makes sense of these various doc-trines by focusing on the different reasons why a delegation might be problematic. A nondelegation doctrine might be “giver-based” (can Congress delegate this power?), “recipient-based” (can the recipient exercise this power?), or “application-based” (will the application of this power be unjust?). Once we distinguish these doctrines, …

What Twenty-First-Century Free Speech Law Means For Securities Regulation, Helen Norton

Notre Dame Law Review

Securities law has long regulated securities-related speech—and until recently, it did so with little, if any, First Amendment controversy. Yet the antiregulatory turn in the Supreme Court’s twenty-first-century Free Speech Clause doctrine has inspired corporate speakers’ increasingly successful efforts to resist regulation in a variety of settings, settings that now include securities law. This doctrinal turn empowers courts, if they so choose, to dismantle the securities regulation framework in place since the Great Depression. At stake are not only recent governmental proposals to require companies to disclose accurate information about their vulnerabilities to climate change and other emerging risks, but …

The "Nonministerial" Exception, Athanasius G. Sirilla

Notre Dame Law Review

In 2014, Charlotte Catholic High School declined to continue Lonnie Billard’s employment as a substitute drama teacher after he publicly announced, via Facebook, that he and his same-sex partner were getting civilly married. Billard sued the school in the Western District of North Carolina for unlawful employment discrimination under Title VII of the Civil Rights Act due to his sexual orientation. The district court granted summary judgment in favor of Billard. The court first held that the high school’s actions could constitute unlawful sex discrimination in light of the Supreme Court’s ruling in Bostock v. Clayton County. The district court …

Rule 4 And Personal Jurisdiction, Scott Dodson

Notre Dame Law Review

State-court personal jurisdiction is regulated intensely by the Fourteenth Amend-ment’s Due Process Clause, which the Court has famously used to tie state-court personal jurisdiction to state borders. Although the Fourteenth Amendment doesn’t apply to federal courts, the prevailing wisdom is that federal courts nevertheless are largely confined to the same personal-jurisdiction limits as state courts because of Rule 4(k), which provides that service “establishes personal jurisdiction” in federal court only upon specified conditions, including when the state courts would have personal jurisdiction. Some commentators have further argued that Rule 4(k) sets a limit on federal-court personal jurisdiction independent of service …

Against The Chenery Ii "Doctrine", Gary S. Lawson, Joseph Postell

Notre Dame Law Review

The Supreme Court’s 1947 decision in SEC v. Chenery Corp. ( Chenery II) is generally taken as blanket authorization for agencies to make law through either adju-dication or rulemaking if their organic statutes permit both modes. We think this is an overreading of the doctrine. The decision in Chenery II need not be read so broadly, and there are good reasons to read it more narrowly. The most important reason is that agency lawmaking through adjudication presents serious constitutional concerns involving due process of law and subdelegation of legislative power, at least if the agency action deprives people of life, …