Law Commons^™

A House Divided: When State And Lower Federal Courts Disagree On Federal Constitutional Rights, Wayne A. Logan

Notre Dame Law Review

This Article provides the first in-depth examination of state-federal concurrent constitutional authority and does so by focusing on a context in which its consequences are most problematic: within individual states. While a handful of articles over the years have examined state court power vis-a-vis federal constitutional questions more generally, no systematic effort has been undertaken to examine intrastate, state-federal conflict on federal constitutional questions. This Article redresses this deficit, using as its doctrinal locus federal constitutional criminal procedure, with its unique impact on government power and individual liberty and privacy.

Our Anchor For 225 Years And Counting: The Enduring Significance Of The Precise Text Of The Constitution, Brett M. Kavanaugh

Notre Dame Law Review

When one comes to Notre Dame, whether for a law review symposium or for a football game or for both, your mind is drawn to fundamentals and history. This is a place that oozes history, and in that vein, I want to take a step back and focus on the text of our Constitution. I want to focus on that text in two dimensions. First, I want to explain how the text of the Constitution creates a structure—a separation of powers—that protects liberty. And in particular, I want to emphasize how that structure tilts toward liberty, how it creates legislative …

The Paths To Griswold, Ryan C. Williams

Notre Dame Law Review

The goal of this Article is to develop a fuller picture of Griswold by situating the case within a series of doctrinal and jurisprudential debates and developments that were prominent at the time of the Court's decision but that have faded in significance over time. This alternative picture of Griswold shifts the focus away from viewing the case as one about birth control, sexual privacy, and women's autonomy and toward viewing the decision as one about interpretive method, constitutional theory, and the Supreme Court's role within the national political system. This alternative perspective on Griswold has by no means gone …

The Decline Of Legal Classicism And The Evolution Of New Deal Constitutionalism, Samuel R. Olken

Notre Dame Law Review

This Article explores how some of the salient characteristics of classical legal thought influenced the evolution of the Supreme Court’s constitutional jurisprudence during the New Deal era. It focuses upon the Court’s jurisprudence of economic liberty in the context of substantive due process. Though a similar pattern of evolution occurred in the Court’s Commerce Clause jurisprudence, examination of this area of constitutional development is beyond the scope of this Article. Part I provides an overview of legal classicism and its influence upon late nineteenth and early twentieth-century constitutional law. The next Part examines the paradox of legal classicism and its …

The Least Activist Supreme Court In History? The Roberts Court And The Exercise Of Judicial Review, Keith E. Whittington

Notre Dame Law Review

Not too many years ago, scholars could reasonably speak of the U.S. Supreme Court as being among the most activist in American history. Both empirical and normative scholarship was driven by the sense of a Court that was aggressive in the assertion of its own supremacy and active in the exercise of the power of judicial review. The Court under Chief Justice John Roberts cannot be viewed in the same way. The Roberts Court has issued its share of controversial constitutional decisions, but a rarely observed but important feature of the Roberts Court is its unusual restraint in the exercise …

From Progressivism To Modern Liberalism: Louis D. Brandeis As A Transitional Figure In Constitutional Law, David E. Bernstein

Notre Dame Law Review

Part I of this Article discusses Brandeis’s many deviations from civil libertarianism as it came to be understood in the post–New Deal period. These deviations include his acquiescence to coercive eugenics, his general lack of interest in African American rights, his support for protective labor legislation for women and concomitant disregard for women’s legal equality, his toleration of government abuses attendant to Prohibition enforcement, and his desire to repeal the Fourteenth Amendment. Part II shows that despite these deviations, Brandeis had a significantly stronger record on civil liberties as a Supreme Court Justice than one would expect from someone of …

The Former Clerks Who Nearly Killed Judicial Restraint, Brad Snyder

Notre Dame Law Review

This symposium piece explores the rise and fall of legal process theory as well as the scholarship of former Warren Court and early Burger Court clerks who nearly killed it. It also suggests that there could be a revival of a process-based judicial restraint based on a new generation of late Burger Court/early Rehnquist Court clerks-turned-academics who came of age during the mid-1980s. These law clerks rejected judicial supremacy and adopted popular constitutionalism and other democratic approaches to constitutional interpretation. Popular constitutionalism is inspired by the same faith in the democratic political process as the judicial restraint advocated by James …

Suing Foreign Officials In U.S. Courts: Upholding Separation Of Powers By Limiting Judicial Abrogation Of Immunity, Sarah P. Hogarth

Notre Dame Law Review

This Note will propose the constitutional framework courts should implement when suits are brought against individual foreign officials post-Samantar, specifically arguing that the constitutional allocation of foreign affairs powers requires U.S. courts to broadly insulate foreign officials from suit absent authorization from a political branch. Part I examines the law of nations and its incorporation into the specific foreign relations powers delegated by the Constitution to the political branches, highlighting that the power to affect relations with foreign sovereigns resides in the political branches. Part II explains the Supreme Court’s development of foreign sovereign immunity and the act of state …

The Cost Of Judicial Error: Stare Decisis And The Role Of Normative Theory, Kurt T. Lash

Notre Dame Law Review

The Supreme Court of the United States has long embraced the doctrine of stare decisis as an appropriate consideration any time the Court considers overruling past precedent. However, because the Court's actual application of the doctrine has been both sporadic and seemingly inconsistent, some scholars (and Justices) have accused the Court of methodological hypocrisy and bad faith. Much of this criticism assumes that, if members of the Supreme Court find certain rule of law values dispositive in one case, they should find those same considerations dispositive in all cases. Failure to do so suggests either incompetence or insincerity. This Article …

Intragenerational Constitutional Overruling, L.A. Powe Jr.

Notre Dame Law Review

This Article seeks to shed some light on a comparatively rare, but important issue in constitutional jurisprudence: Under what circumstances does the Supreme Court formally overrule one of its own significant constitutional precedents within the same judicial generation as the announcement of the precedent? This phenomenon is one part of the broader role of precedent and stare decisis in fashioning and maintaining constitutional law—albeit in part because of the modifier “significant”—there are a limited number of such cases (some three dozen where the overruled case was decided after the introduction of President Franklin Roosevelt’s Court-packing plan, roughly once every other …

The Jurisprudence Of The Hughes Court: The Recent Literature, Barry Cushman

Notre Dame Law Review

The balance of this Article is devoted, after a fashion, to an exploration of the extent to which the recent literature on the Hughes Court seeks to incorporate the internal point of view. In Part I, I seek to identify the historiographical premises undergirding each author’s treatment of the subject. In Part II, I explore how those historiographical premises are reflected in each author’s treatment of the substantive development of constitutional doctrine during the period. In Part III, I examine the ways in which those historiographical premises inform each author’s analysis of the causal forces driving that doctrinal development. Part …

The "Constitution In Exile" As A Problem For Legal Theory, Stephen E. Sachs

Notre Dame Law Review

How does one defend a constitutional theory that’s out of the mainstream? Critics of originalism, for example, have described it as a nefarious “Constitution in Exile,” a plot to impose abandoned rules on the unsuspecting public. This framing is largely mythical, but it raises a serious objection. If a theory asks us to change our legal practices, leaving important questions to academics or historians, how can it be a theory of our law? If law is a matter of social convention, how can there be conventions that hardly anybody knows about? How is a constitution in exile even possible?

This …

Online Terms Of Service: A Shield For First Amendment Scrutiny Of Government Action, Jacquelyn E. Fradette

Notre Dame Law Review

Part I of this Note will canvas popular opinions and perceptions about First Amendment rights on the Internet using examples of public outcry over recent instances of speech limitation. It will also discuss the state action doctrine generally and how the presence of this doctrine most likely renders certain popular public constitutional intuitions about the First Amendment erroneous.

Part II will provide an overview of how courts have taken an expansive and protective view of private ordering between online parties. It will discuss how courts have developed a robust freedom to contract jurisprudence in the Internet context. Because courts essentially …

The Unitary Executive And The Plural Judiciary: On The Potential Virtues Of Decentralized Judicial Power, Ronald J. Krotoszynski, Jr.

Notre Dame Law Review

The federal judiciary features a highly decentralized system of courts. The Supreme Court of the United States reviews only a few dozen cases each year. Meanwhile, regional U.S. courts of appeals operate independently of each other; district courts further divide and separate the exercise of federal judicial power. The role of the state courts in enforcing federal law further subdivides responsibility for the adjudication of federal law claims. Indeed, the Office of Chief Justice itself incorporates and reflects this vesting of the judicial power of the United States exclusively in collegial institutions—literally in a multiplicity of hands—effectively precluding its unilateral …

Tyranny By Proxy: State Action And The Private Use Of Deadly Force, John L. Watts

Notre Dame Law Review

The Article begins in Part I with a discussion of the Supreme Court’s opinion and holding in Tennessee v. Garner. It then describes the continuing application of the fleeing felon rule to private actors despite the Court’s holding in Garner.

Part II describes the state action doctrine, examines its history, and clarifies its purpose. It explains why the Court’s early focus on enhancing individual autonomy and federalism as the purpose of the state action doctrine was only partially correct. In fact, the doctrine enhances many of the familiar constitutional strategies for the prevention of tyranny including: separation of powers, democratic …

Weathering Wal-Mart, Joseph A. Seiner

Notre Dame Law Review

In Wal-Mart Stores, Inc. v. Dukes, 131 S. Ct. 2531 (2011), the Supreme Court held that a proposed class of over a million women that had alleged pay and promotion discrimination against the nation’s largest retailer could not be certified. According to the Court, the plaintiffs had failed to establish a common thread in the case sufficient to tie their claims together. The academic response to Wal-Mart was immediate and harsh: the decision will serve as the death knell for mass employment litigation, undermining the workplace protections provided by Title VII of the Civil Rights Act of 1964 (Title VII). …

Multiculturalism And Constitutionalism In Latin America, José Antonio Aguilar Rivera

Notre Dame Journal of International & Comparative Law

José Antonio Aguilar Rivera discusses recent reforms to the constitutions of several Latin American states. According to Aguilar Rivera, these reforms tend to recognize and protect the multiethnic and multicultural nature of Latin American socieites. While acknowledging that some have lauded these changes as progressive moves towards a more developed form of democracy, Aguilar Rivera reaches the opposite conclusion. He argues that these trends in Latin American constitutionalism represent an "authoritarian regression" rather than an enhancement of democracy. Aguilar Rivera begins by discussing and critiquing prevalent Western theories of multiculturalism, particularly the versions set forth by Canadian theorists Charles Taylor, …

Latin American Constitutionalism: Social Rights And The “Engine Room” Of The Constitution, Roberto Gargarella

Notre Dame Journal of International & Comparative Law

Roberto Gargarella surveys the landscape of Latin American Constitutionalism from 1810 to 2010, with particular emphasis on efforts in the late twentieth and early twenty-first centuries to enhance protections of multiculturalism and human rights. Gargarella begins by surveying the "founding period" of Latin American constitutionalism, a period marked by compromise between liberals and conservatives. He proceeds to discuss the increasing incorporation of social rights—primarily economic and labor rights—during the early twentieth century. Gargarella then discusses a final wave of reforms, which introduced increasing human rights protections in the latter half of the twentieth century and the beginning of the twenty-first. …

Sotomayor's Empathy Moves The Court A Step Closer To Equitable Adjudication, Veronica Couzo

Notre Dame Law Review

On August 6, 2009, then-Judge, now-Justice, Sonia Sotomayor was confirmed as the nation’s first Latina Supreme Court Justice. While many Latinos embraced the idea of having “Sonia from the Bronx” on the bench, others were fearful that her jurisprudence, combined with her background, would result in “reverse racism.” These fears, while arguably unfounded at the time, have been completely dispelled. Just as Justice Thurgood Marshall transformed the adjudications of the Supreme Court through experiential discourse, so too, to a lesser extent, has Justice Sotomayor. In both oral arguments and written opinions, Justice Sonia Sotomayor has demonstrated educative leadership—enlightening her colleagues …

The Constraint Of Dignity: Lawrence V. Texas And Public Morality, Kristian R. Mukoski

Notre Dame Law Review

This Note will proceed in four parts. Part I will catalogue the jurisprudential and philosophical conflict over the legitimacy of morals legislation. Part II will examine the Supreme Court’s jurisprudence regarding reproductive and sexual liberty, noting the trend towards conflating liberty with autonomy that culminated in Lawrence v. Texas. Part III will closely scrutinize the characterization of liberty in Lawrence, demonstrating that it is restricted by associational and spatial limitations. Part IV will connect those limitations to the description of dignity Justice Kennedy employed in Lawrence and in other cases. This conception of dignity embodies substantive values concerning the appropriate …

Originalism And The Colorblind Constitution, Michael B. Rappaport

Notre Dame Law Review

In this Article, I challenge the claim that the original meaning clearly allows the states to engage in affirmative action. I argue that the original meaning does not plainly establish that affirmative action by the states is constitutional. Instead, there is, at the least, a reasonable argument to be made that state government affirmative action is unconstitutional. In fact, based on the available evidence, I believe that the case for concluding that the Fourteenth Amendment’s original meaning prohibits affirmative action as to laws within its scope is stronger than the case for concluding that it allows affirmative action. I do …

Nfib V. Sebelius And The Transformation Of The Taxing Power, Barry Cushman

Notre Dame Law Review

In National Federation of Independent Business v. Sebelius, Chief Justice Roberts wrote for a majority of five Justices in holding that the “shared responsibility payment” required by the Patient Protection and Affordable Care Act (“ACA”) constituted an imposition of a “tax” rather than a “penalty.” Thus, even though the Chief Justice and four other Justices had concluded that the provision was not a legitimate exercise of the commerce power, the Court held that it was a valid exercise of the taxing power.

The origin of the distinction between taxes and penalties in taxing power jurisprudence is found in the 1922 …

The Appointment And Removal Of William J. Marbury And When An Office Vests, Saikrishna Bangalore Prakash

Notre Dame Law Review

Scholars have ignored the most important question in one of the most famous constitutional law cases, obscuring the machinations that spawned the dispute. This Article sheds light on the events that precipitated Marbury v. Madison and also explains when an appointment vests. Thomas Jefferson famously refused to deliver a commission to William J. Marbury, causing the latter to seek a writ of mandamus from the Supreme Court. The received wisdom supposes that Jefferson’s refusal rested on the grounds that Marbury had not been appointed a justice of the peace precisely because he never had received a commission. In fact, Jefferson’s …