Law Commons^™

Proportionalities, Youngjae Lee

Notre Dame Law Review Reflection

“Proportionality” is ubiquitous. The idea that punishment should be proportional to crime is familiar in criminal law and has a lengthy history. But that is not the only place where one encounters the concept of proportionality in law and ethics. The idea of proportionality is important also in the self-defense context, where the right to defend oneself with force is limited by the principle of proportionality. Proportionality plays a role in the context of war, especially in the idea that the military advantage one side may draw from an attack must not be excessive in relation to the loss of …

Does The Discourse On 303 Creative Portend A Standing Realignment?, Richard M. Re

Notre Dame Law Review Reflection

Perhaps the most surprising feature of the last Supreme Court Term was the extraordinary public discourse on 303 Creative LLC v. Elenis. According to many commentators, the Court decided what was really a “fake” or “made-up” case brought by someone who asserted standing merely because “she worries.” As a doctrinal matter, these criticisms are unfounded. But what makes this episode interesting is that the criticisms came from the legal Left, which has long been associated with expansive principles of standing. Doubts about standing in 303 Creative may therefore portend a broader standing realignment, in which liberal Justices become jurisdictionally hawkish. …

Congressional Power To Institute A Wealth Tax, Will Clark

Notre Dame Law Review Reflection

Over the last few years, several high-profile politicians have pushed to impose a federal “wealth tax.” For example, a recent bill introduced in the Senate would create a two percent tax on the value of assets between fifty million and one billion dollars, plus a higher percentage on wealth valued over one billion dollars. The proponents of the tax argue that it would reduce the growing wealth inequality in the United States, while opponents say that it would disincentivize investment in the American economy.

Policy arguments, however, are only relevant if the federal government has the authority to institute such …

What's Originalism After Transunion?: Picking An Originalist Approach That Gets Standing Back On Track, Julian Gregorio

Notre Dame Law Review Reflection

This Note argues that not only is standing fascinating and contested, but it is so important that the Court should reconsider standing doctrine in appropriate future cases. While the TransUnion case came and went without much kerfuffle outside of legal circles, standing does not find itself sailing smoothly. As noted, perhaps the Court’s most reliable originalist just dissented from a case that largely restates the current law on standing. And Justice Kagan, perhaps the Court’s most influential liberal, wrote that after TransUnion, standing jurisprudence “needs a rewrite.” Given the current makeup of the Court, any reconsideration of standing doctrine …

Revisiting The Fried Chicken Recipe, Zachary B. Pohlman

Notre Dame Law Review Reflection

Twenty-five years ago, Gary Lawson introduced us to legal theory’s tastiest analogy. He told us about a late-eighteenth-century recipe for making fried chicken and how we ought to interpret it. Lawson’s pithy essay has much to be praised. Yet, even twenty-five years later, there remains more to be said about legal theory’s most famous recipe. In particular, there remains much more to be said about the recipe’s author, a person (or, perhaps, group of people) whom Lawson does not discuss. Lawson’s analysis of the recipe leads him to an “obvious” conclusion: the recipe’s meaning is its original public meaning. If …

Bostock And Textualism: A Response To Berman And Krishnamurthi, Andrew Koppelman

Notre Dame Law Review Reflection

The Bostock Court adopted an argument I’ve been making for years, and that I pressed upon it in an amicus brief: that discrimina-tion against gay people is necessarily sex discrimination. I defended Justice Neil Gorsuch’s opinion for the Court in my article, Bostock, LGBT Discrimination, and the Subtractive Moves, which catalogues various common but unsuccessful strategies for evading the force of the sex discrimination argument. That piece, originally drafted before the Supreme Court’s decision as a critique of arguments by Court of Appeals judges, was easy to revise and update. The dissenters, Justices Samuel Alito (joined by Clarence …

The First Amendment And Military Justice: Threats To Political Neutrality, Joshua Paldino

Notre Dame Law Review Reflection

This backdrop illustrates a throughline that runs throughout, and creates tension within, the Military Justice system. On the one hand, there is a need to protect the individual rights of servicemembers. This concern is driven (in part) by the intuition reflected in Judge O’Connor’s opening sentences—those sworn to protect constitutional liberties should surely enjoy the benefits of that which they protect. On the other, individual rights protections must yield, to some degree, to the needs of military life and military exigency. Of course, "to some degree" is the space in which debate and maneuverability resides. But while discretionary space certainly …

Counting Heads: The Decennial Census And Adjustments To Enumeration, Jay E. Town

Notre Dame Law Review Reflection

The 2020 Decennial Census has become a lightning rod for litigious civil rights organizations, state attorneys general, and even members of Congress. At stake is the apportionment of representatives in the House of Representatives and the Electoral College divided amongst the several states. Furthermore, the “headcount” determines the allotment of $1.5 trillion in nondiscretionary federal dollars to be distributed to the various states based on the persons who are counted in each. The headcount is also used in redistricting of congressional districts. Make no mistake, litigation surrounds the manner in which the census arrives at its headcount after every census. …

A Variable Number Of Cheers For Viewpoint-Based Regulations Of Speech, R. George Wright

Notre Dame Law Review Reflection

If there is one thing we think we know about the First Amendment, it is that speech restrictions based on viewpoint are especially objectionable. The Supreme Court has declared that “[i]f there is a bedrock principle underlying the First Amendment, it is that the government may not prohibit the expression of an idea simply because society finds the idea itself offensive or disagreeable.” For this proposition, the Court has on one occasion cited thirteen of its own precedents.

Much more broadly, the Court has also held that a government “has no power to restrict expression because of its message, its …

One Ring To Rule Them All: Individual Judgments, Nationwide Injunctions, And Universal Handcuffs, Paul J. Larkin Jr., Giancarlo Canaparo

Notre Dame Law Review Reflection

A large and growing body of literature criticizes nationwide injunctions, although a handful of scholars have come to their qualified defense. The literature has focused on whether universal injunctions comport with the historic scope of federal courts’ equitable powers and are good policy to boot. Largely missing from the debate is a fulsome analysis of whether the Constitution or the Judicial Code authorizes federal courts to issue such injunctions and whether they are permissible under existing Supreme Court precedent. We argue that the answer to each question is “no.”

Parts I and II explain that no positive law authorizes universal …

Fruit Of The Poisonous Lemon Tree: How The Supreme Court Created Offended-Observer Standing, And Why It's Time For It To Go, Joseph C. Davis, Nicholas R. Reaves

Notre Dame Law Review Reflection

Can individuals who observe what they consider to be offensive government speech or conduct sue to stop it? Typically not—absent additional evidence of a direct and particularized injury. Yet in one area of the law, the fundamental requirements of Article III (limiting federal standing to actual “cases” or “controversies”) are relaxed: the Establishment Clause. At least ten circuits have held that the mere observation of a display containing religious content (the Ten Commandments, a cross, a menorah, and the like) on public property suffices to create an injury-in-fact that opens the doors to federal court.

This Essay addresses the continued …

Covid-19 And Domestic Travel Restrictions, Katherine Florey

Notre Dame Law Review Reflection

The strict controls that many jurisdictions, including most U.S. states, established to contain the COVID-19 pandemic have proven difficult to sustain over time, and most places are moving to lift them. Internationally, many plans to ease lockdowns have retained some form of travel restrictions, including the “green zone” plans adopted by France and Spain, which limit travel between regions with widespread community transmission of COVID-19 and those without it. By contrast, most U.S. states lifting shelter-in-place orders have opted to remove limits on movement as well. This Essay argues that this situation is unwise: it tends to create travel patterns …

The Meaning Of Federalism In A System Of Interstate Commerce: Free Trade Among The Several States, Donald J. Kochan

Notre Dame Law Review Reflection

As states become dissatisfied with either the direction of federal policy or the

gridlock that seems like a barrier frustrating action, their disdain or impatience is

increasingly manifest in state legislative or regulatory efforts to reach big issues

normally reserved to federal resolution. Increasingly, such efforts to stake a position

on issues of national or international importance are testing the limits of state

autonomy within a system of federalism that includes robust protection for the free

flow of commerce among the several states.

This Essay provides the primary historical backdrop against which these

measures should be judged with a particular …

Employment Division V. Smith And State Free Exercise Protections: Should State Courts Feel Obligated To Apply The Federal Standard In Adjudicating Alleged Violations Of Their State Free Exercise Clauses?, Matthew Linnabary

Notre Dame Law Review Reflection

State courts should feel free to apply whatever test is most appropriate based on the textual provisions of their state constitution that protects the free exercise or worship of its citizens. Of course, such freedom to the state courts is greatly limited in many states by the passage of their own Religious Freedom Restoration Acts. These acts generally set forth precisely how the courts must determine whether or not a law violates the free exercise or worship of a claimant. Even if not limited by a RFRA—which would generally require strict scrutiny—a state court should apply strict scrutiny to violations …

Lafler V. Cooper's Remedy: A Weak Response To A Constitutional Violation, Matthew T. Ciulla

Notre Dame Law Review Reflection

The Lafler v. Cooper Court should have chosen the remedy of specific performance of the original plea bargain. The specific performance remedy, long implemented by federal courts in Lafler-like scenarios, and ordered by the district court in Lafler, precisely cures the Lafler injury—the accused regains the ability to accept the original plea offer, except he now has the benefit of effective assistance of counsel. The specific performance remedy, when coupled with the safeguards of the Strickland prongs, poses little risk of abuse, and gives heft to the Sixth Amendment’s guarantee of effective assistance of counsel in the plea …

Military Mothers And Claims Under The Federal Tort Claims Act For Injuries That Occur Pre-Birth, Tara Willke

Notre Dame Law Review Reflection

In order to right a longstanding wrong perpetrated against military mothers and their children, the Court should grant review in Ortiz v. United States ex rel. Evans Army Community Hospital. Part I of this Essay provides a brief discussion of the FTCA and the Feres doctrine. Part II discusses the facts and holding in Ortiz and its rejection of the approaches taken in other circuits involving pregnant service members and pre-birth injuries, which has caused a clear split in the circuits. Part III argues that these types of claims are not subject to the Feres doctrine because pregnancy and …

The Emergence Of Contextually Constrained Purposivism, Michael C. Mikulic

Notre Dame Law Review Reflection

This Case Comment first outlines the various methods of statutory construction used by the Supreme Court throughout its history, leading up to the Court’s implementation of contextually constrained purposivism in King v. Burwell. It then provides a summary of the facts and procedural history of King, thereby setting the stage to explain how the Court invoked contextually constrained purposivism. Finally, the Case Comment discusses some of the positive and negative implications of the approach.

Ohio V. Clark , Peter M. Torstensen Jr.

Notre Dame Law Review Reflection

The heart of the debate over the purpose of the Confrontation Clause is the manner in which confrontation was intended to secure a defendant’s rights—either through procedural fairness or ensuring evidentiary reliability. The eventual direction the Supreme Court takes will depend, in large part, on which of these visions of the Confrontation Clause ultimately prevails. Michigan v. Bryant marked a potential step in the direction of the Ohio v. Roberts vision, and Ohio v. Clark does not appear to have departed from the course set in Bryant. Thus, while Crawford v. Washington marked a sea change in the Court’s confrontation …

Is Stare Decisis Inconsistent With The Original Meaning Of The Constitution?: Exploring The Theoretical And Empirical Possibilities, James Cleith Phillips

Notre Dame Law Review Reflection

For some time, a scholarly debate has raged over whether a commitment to the original meaning of the Constitution allows for the doctrine of stare decisis, whereby courts defer to precedent simply because it is precedent. This Essay explains the range of theoretical possibilities for this seemingly incompatible duo, as put forth by originalism’s leading scholars, and situates these various theories on a continuum. The Essay ends with a preview of the difficulties and possibilities that follow from the various empirical answers regarding the relationship between stare decisis and the Constitution at the Founding.

The New Elections Clause, Michael T. Morley

Notre Dame Law Review Reflection

The Elections Clause and Presidential Electors Clause are the sources of a wide range of constitutional doctrines concerning federal elections. While Arizona State Legislature v. Arizona Independent Redistricting Commission, on its face, addresses only the meaning of “Legislature” in the Elections Clause and the validity of redistricting commissions, the Court’s broad reasoning sweeps much further. This Essay offers a first analysis of the “new” Elections Clause in the wake of this ruling.

A Critique Of Hobby Lobby And The Supreme Court's Hands-Off Approach To Religion, Samuel J. Levine

Notre Dame Law Review Reflection

Part I of this Essay provides a brief overview for analyzing the Supreme Court’s hands-off approach to religious doctrine. Specifically, this Part presents a summary of problems posed by the hands-off approach, followed by a brief taxonomy of different forms of judicial inquiry into religion. This Part aims to clarify which forms of inquiry are permissible—and typically necessary—for adjudication of a case involving a religious claim, and which forms of inquiry are precluded under the hands-off doctrine. Part II of this Essay applies the hands-off framework to the Hobby Lobby decision, considering the taxonomy of forms of judicial inquiry into …

The Factual Reality Of Koontz V. St. Johns, Eric Dean Hageman

Notre Dame Law Review Reflection

The Court’s opinion in Koontz has elicited many negative reactions in academia, most of which focus on the expansion of Nollan and Dolan to monetary exactions. Criticisms run the gamut: some scholars argue that the Court was wrong to ignore the environmental impact of land developments, while others suggest the Court gave the same consideration too much credence. These criticisms are likely premature and necessarily speculative, since the Court decided the case less than two years ago.

Scholars have scrutinized this case’s factual and procedural history less closely, and those elements may justify the Court’s holding. Two often-overlooked facts are …

Bond V. United States, Dean M. Nickles

Notre Dame Law Review Reflection

Although the majority’s outcome was correct, the application of the clear statement rule in this situation seems incorrect. The majority misconstrues the statute not to reach Mrs. Bond’s conduct when it should have done so. The concurrences properly assert that despite the conduct here falling within the clear definition of the statute, the Court should have reversed the conviction on constitutional grounds. As a result of this decision, Congress should now plan to make clarifying statements about the scope of the statute in order to avoid the clear statement problem identified here.

Separately, although only dicta, Justice Scalia’s assertion that …