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Articles 181 - 210 of 389
Full-Text Articles in Law
Catholic Constitutionalism From The Americanist Controversy To Dignitatis Humanae, Anna Su
Catholic Constitutionalism From The Americanist Controversy To Dignitatis Humanae, Anna Su
Notre Dame Law Review
This Article, written for a symposium on the fiftieth anniversary of Dignitatis Humanae, or the Roman Catholic Church’s Declaration on Religious Freedom, traces a brief history of Catholic constitutionalism from the Americanist controversy of the late nineteenth century up until the issuance of Dignitatis Humanae as part of the Second Vatican Council in 1965. It argues that the pluralist experiment enshrined in the First Amendment of the U.S. Constitution was a crucial factor in shaping Church attitudes towards religious freedom, not only in the years immediately preceding the revolutionary Second Vatican Council but ever since the late nineteenth century, …
Against Martyrdom: A Liberal Argument For Accommodation Of Religion, Paul Horwitz
Against Martyrdom: A Liberal Argument For Accommodation Of Religion, Paul Horwitz
Notre Dame Law Review
Drawing in part on that literature, and in sympathy with the desire to reaffirm the importance of religious freedom and the accommodation of religious groups and practices without opposing or disdaining liberalism or progressivism altogether,18 this Article offers a liberal argument in favor of the legal accommodation of religion, including the accommodation of illiberal religious groups and practices. Although my own work is substantially pluralist in orientation, the argument here is intended to appeal directly to more “rationalist” liberals.
Religious Majorities And Restrictions On Religion, Brett G. Scharffs
Religious Majorities And Restrictions On Religion, Brett G. Scharffs
Notre Dame Law Review
Social scientists studying freedom of religion and belief have focused upon two types of restrictions on religious freedom, formal restrictions that take the form of laws and other official legal limitations on freedom of religion and belief, and informal restrictions that take the form of social hostilities towards religion or towards particular religious groups, usually minorities. This Article seeks to build upon this work in three ways: first, by noting the striking correlations between countries with very high or high legal restrictions and social hostilities regarding religion and the frequent presence of a dominant religious group in those countries; second, …
Brief Of Amici Curiae Intellectual Property Law Professors, Mark Mckenna, Rebecca Tushnet
Brief Of Amici Curiae Intellectual Property Law Professors, Mark Mckenna, Rebecca Tushnet
Court Briefs
The District Court correctly determined that the challenged speech of Dr. Steven Novella was not commercial speech for purposes of applying the Lanham Act. Appellant’s argument to the contrary conflates “seeking profit” with “commercial speech.”
Adoption And Foster Care Placement Policies: Legislatively Promoting The Best Interest Of Children Amidst Competing Interests Of Religious Freedom And Equal Protection For Same-Sex Couples, Samantha R. Lyew
Journal of Legislation
No abstract provided.
Stop The Reach: Solving The Judicial Takings Problem By Objectively Defining Property, Steven C. Begakis
Stop The Reach: Solving The Judicial Takings Problem By Objectively Defining Property, Steven C. Begakis
Notre Dame Law Review
The future of judicial takings may rest on the ability of the Court to define property in a robust and objective way. Property has essential characteristics that make it easily identifiable, the most significant of which are the rights to exclude and use. However, even when a property right does not fit within a neat categorical definition, should that right have a long, well established pedigree in state court precedent, that property right is similarly within the capacity of the reviewing court to identify. And once it is determined that, prior to the judgment, the petitioners possessed a clearly defined …
Military Mothers And Claims Under The Federal Tort Claims Act For Injuries That Occur Pre-Birth, Tara Willke
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
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.
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 …
The Meanings Of The "Privileges And Immunities Of Citizens" On The Eve Of The Civil War, David R. Upham
The Meanings Of The "Privileges And Immunities Of Citizens" On The Eve Of The Civil War, David R. Upham
Notre Dame Law Review
The Fourteenth Amendment to our Constitution provides, in part, that “[n]o State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States.” This “Privileges or Immunities Clause” has been called “the darling of the professoriate.” Indeed, in the last decade alone, law professors have published dozens of articles treating the provision. The focus of this particular study is the interpretation of the “privileges and immunities of citizens” offered by American political actors, including not only judges, but also elected officials and private citizens, before the Fourteenth Amendment, and primarily, on the …
Originalist Or Original: The Difficulties Of Reconciling Citizens United With Corporate Law History, Leo E. Strine Jr., Nicholas Walter
Originalist Or Original: The Difficulties Of Reconciling Citizens United With Corporate Law History, Leo E. Strine Jr., Nicholas Walter
Notre Dame Law Review
In this Article, we focus on a specific question raised by Citizens United, which is whether the Supreme Court’s decision can be justified solely by application of the originalist method of constitutional interpretation, or whether it can only be explained by giving substantial weight to a more modern, evolved understanding of the relevant constitutional provisions. We conclude that however Citizens United is rationalized, it cannot be defended solely or primarily as the product of a disciplined application of the originalist method of constitutional interpretation. Because Citizens United takes a view at odds both with the historical understanding of business …
Standing Doctrine's State Action Problem, Seth Davis
Standing Doctrine's State Action Problem, Seth Davis
Notre Dame Law Review
Something surprising happened in the 2013 marriage equality cases that did not involve striking down the Defense of Marriage Act. The Supreme Court discovered standing doctrine’s state action problem. In standing doctrine, as elsewhere, the law distinguishes private from governmental action. There are, simply put, different standing rules for state actors than for private litigants. How should the law sort state actors from private litigants for the purposes of standing? In Hollingsworth v. Perry, the Court held that Article III limits government standing to common law agents who owe fiduciary duties to the state. The Perry Court’s apparent concern was …
Why The Right To Elective Abortion Fails Casey'S Own Interest-Balancing Methodology—And Why It Matters, Stephen G. Gilles
Why The Right To Elective Abortion Fails Casey'S Own Interest-Balancing Methodology—And Why It Matters, Stephen G. Gilles
Notre Dame Law Review
Casey adopted a new, interest-balancing framework for the right to elective abortion while preserving the core of that right. But by declining to address whether the right to elective abortion can be justified in interest-balancing terms, Casey opened the door to unduly stringent applications of the undue-burden standard and, no less importantly, to future extensions of the right. By ruling that the state’s interest in protecting pre-viable fetal life outweighs the woman’s interest in an elective abortion, while preserving that right on stare decisis grounds, the Court could ensure that the balance it struck in Casey—and that “was central …
The Curious Case Of Seminole Rock: Revisiting Judicial Deference To Agency Interpretations Of Their Ambiguous Regulations, Peter M. Torstensen Jr.
The Curious Case Of Seminole Rock: Revisiting Judicial Deference To Agency Interpretations Of Their Ambiguous Regulations, Peter M. Torstensen Jr.
Notre Dame Law Review
Seminole Rock deference warrants reconsideration as it is based on questionable constitutional and pragmatic foundations. This Note argues that courts should provide a meaningful check on agency interpretations by engaging in de novo review of agency resolutions of regulatory ambiguities. Part I explores the development of the Seminole Rock doctrine, from its questionable doctrinal foundations and rapid expansion to the developing concerns regarding its continued validity. In addition, Part I explains the variety of forms that agency interpretations can take, including legal briefs, amicus briefs, and internal memoranda, and discusses their impact in expanding the scope of Seminole Rock deference. …
Is Stare Decisis Inconsistent With The Original Meaning Of The Constitution?: Exploring The Theoretical And Empirical Possibilities, James Cleith Phillips
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
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.
Congressional Originalism, Amy Coney Barrett, John Copeland` Nagle
Congressional Originalism, Amy Coney Barrett, John Copeland` Nagle
Journal Articles
Precedent poses a notoriously difficult problem for originalists. Some decisions – so-called super precedents – are so well baked into government that reversing them would wreak havoc. Originalists have been pressed to either acknowledge that their theory could generate major disruption or identify a principled exception to their insistence that judges are bound to enforce the Constitution’s original public meaning. While the stylized process of adjudication narrows the questions presented to the Court, in Congress the question of a measure’s constitutionality is always on the table. And because framing constraints do not narrow the relevant and permissible grounds of decision …
Enduring Originalism, Jeffrey Pojanowski, Kevin C. Walsh
Enduring Originalism, Jeffrey Pojanowski, Kevin C. Walsh
Journal Articles
If our law requires originalism in constitutional interpretation, then that would be a good reason to be an originalist. This insight animates what many have begun to call the “positive turn” in originalism. Defenses of originalism in this vein are “positive” in that they are based on the status of the Constitution, and constitutional law, as positive law. This approach shifts focus away from abstract conceptual or normative arguments about interpretation and focuses instead on how we actually understand and apply the Constitution as law. On these grounds, originalism rests on a factual claim about the content of our law: …
Discretionary Dockets, Randy J. Kozel, Jeffrey Pojanowski
Discretionary Dockets, Randy J. Kozel, Jeffrey Pojanowski
Journal Articles
The Supreme Court’s workload and its method for selecting cases have drawn increasing critical scrutiny. Similarly, and separately, recent commentary has focused on the disparate approaches the Court has taken to resolving cases on its (historically small) docket. In this Essay we draw these two lines of inquiry together to argue that the Court’s case selection should align with its approach to constitutional adjudication. In doing so, we discuss four modes of constitutional decisionmaking and then examine the interplay between those modes, the Court’s management of its docket, and its sense of institutional role. The Court, we argue, has neither …
Hunting And The Second Amendment, Joseph Blocher
Hunting And The Second Amendment, Joseph Blocher
Notre Dame Law Review
Debates about the meaning and scope of the Second Amendment have traditionally focused on whether it protects the keeping and bearing of arms for self-defense, prevention of tyranny, maintenance of the militia, or some combination of those three things. But roughly half of American gun-owners identify hunting or sport shooting as their primary reason for owning a gun. And while much public rhetoric suggests that these activities fall within the scope of the Second Amendment, some of the most committed gun-rights advocates insist that the Amendment “ain’t about hunting” and that, no matter their heritage and value, such activities are …
The Fixation Thesis: The Role Of Historical Fact In Original Meaning, Lawrence B. Solum
The Fixation Thesis: The Role Of Historical Fact In Original Meaning, Lawrence B. Solum
Notre Dame Law Review
Part I begins by examining the role of the Fixation Thesis in contemporary originalist constitutional theory. The next step, in Part II, is to state the affirmative case for the Fixation Thesis. This is the heart of this Article and readers who are looking for the gist might limit themselves to the discussion here. Part III explores a variety of objections to the Fixation Thesis and clarifies the content of the thesis in light of the answers to these objections. Several theoretical views that reject (or seem to reject) the Fixation Thesis are examined in Part IV. Part V applies …
A Critique Of Hobby Lobby And The Supreme Court's Hands-Off Approach To Religion, Samuel J. Levine
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 …
Applying Citizens United To Ordinary Corruption: With A Note On Blagojevich, Mcdonnell, And The Criminalization Of Politics, George D. Brown
Applying Citizens United To Ordinary Corruption: With A Note On Blagojevich, Mcdonnell, And The Criminalization Of Politics, George D. Brown
Notre Dame Law Review
Federal criminal law frequently deals with the problem of corruption in the form of purchased political influence. There appear to be two distinct bodies of federal anticorruption law: one concerning constitutional issues in the prevention of corruption through campaign finance regulation, and one addressing corruption in the form of such crimes as bribery, extortion by public officials, and gratuities to them. The latter body of law primarily presents issues of statutory construction, but it may be desirable for courts approaching these issues to have an animating theory of what corruption is and how to deal with it. At the moment, …
Collateral Consequences And The Preventive State, Sandra G. Mayson
Collateral Consequences And The Preventive State, Sandra G. Mayson
Notre Dame Law Review
Approximately eight percent of adults in the United States have a felony conviction. The “collateral consequences” of criminal conviction (CCs)—legal disabilities imposed by legislatures on the basis of conviction, but not as part of the sentence—have relegated that group to permanent second-class legal status. Despite the breadth and significance of this demotion, the Constitution has provided no check; courts have almost uniformly rejected constitutional challenges to CCs. Among scholars, practitioners and mainstream media, a consensus has emerged that the courts have erred by failing to recognize CCs as a form of additional punishment. Courts should correct course by classifying CCs …
Religion And Social Coherentism, Nelson Tebbe
Religion And Social Coherentism, Nelson Tebbe
Notre Dame Law Review
Today, prominent academics are questioning the very possibility of a theory of free exercise or non-establishment. They argue that judgments in the area can only be conclusory or irrational. In contrast to such skeptics, this Essay argues that decisionmaking on questions of religious freedom can be morally justified. Two arguments constitute the Essay. Part I begins by acknowledging that skepticism has power. The skeptics rightly identify some inevitable indeterminacy, but they mistakenly argue that it necessarily signals decisionmaking that is irrational or unjustified. Their critique is especially striking because the skeptics’ prudential way of working on concrete problems actually shares …
Equal Access In Cyberspace: On Bridging The Digital Divide In Public Accommodations Coverage Through Amendment To The Americans With Disabilities Act, Laura Wolk
Notre Dame Law Review
This Note will proceed in three Parts. Part I will trace the development of the case law on this issue, which has culminated in a circuit split. It will also discuss the influence of the Department of Justice (DOJ), which has not exercised its regulatory authority on the subject but which has initiated enforcement actions consistent with an interpretation that includes freestanding websites. Part II will argue, based on the text, congressional silence, and the statute’s dual principal purposes, that private commercial websites do not fall within the purview of Title III. Part III will propose that disability rights advocates …
Article Iii In The Political Branches, Tara Leigh Grove
Article Iii In The Political Branches, Tara Leigh Grove
Notre Dame Law Review
In many separation of powers debates, scholars excavate the practices and constitutional interpretations of Congress and the executive branch in order to discern the scope of various constitutional provisions. I argue that similar attention to political branch practice is warranted in the Article III context. That is true, in large part because much of the constitutional history of the federal courts has been written not by the federal judiciary, but by the legislative and executive branches. To illustrate this point, this Essay focuses on the Exceptions Clause of Article III. The Supreme Court has said little about the meaning of …
In The Beginning There Was None: Supreme Court Review Of State Criminal Prosecutions, Kevin C. Walsh
In The Beginning There Was None: Supreme Court Review Of State Criminal Prosecutions, Kevin C. Walsh
Notre Dame Law Review
This Article challenges the unquestioned assumption of all contemporary scholars of federal jurisdiction that section 25 of the Judiciary Act of 1789 authorized Supreme Court appellate review of state criminal prosecutions. This Article resurrects Charles Hammond’s arguments and contends that he was right: the best interpretation of section 25 is that it did not encompass Supreme Court appellate review of state criminal prosecutions. Others may reasonably disagree with this Article’s ultimate interpretive conclusion about section 25’s limited reach even while acknowledging the strength of the various supporting arguments. Accordingly, this Article’s basic claim comes in both a strong version and …
Exclusion And Equality: How Exclusion From The Political Process Renders Religious Liberty Unequal, Philip Hamburger
Exclusion And Equality: How Exclusion From The Political Process Renders Religious Liberty Unequal, Philip Hamburger
Notre Dame Law Review
Exclusion from the political process is a central question in American law. Thus far, however, it has not been recognized how religious Americans are excluded from the political process and what this means for religious equality. Put simply, both administrative lawmaking and § 501(c)(3) of the Internal Revenue Code substantially exclude religious Americans from the political process that produces laws. As a result, apparently equal laws are apt, in reality, to be unequal for religious Americans. Political exclusion threatens religious equality. The primary practical conclusion concerns administrative law. It will be seen that this sort of “law” is made through …
The Many And Varied Roles Of History In Constitutional Adjudication, Richard H. Fallon Jr.
The Many And Varied Roles Of History In Constitutional Adjudication, Richard H. Fallon Jr.
Notre Dame Law Review
Part I presents the thesis that the Supreme Court frequently undertakes a multiplicity of history-based inquiries and weighs a variety of historically grounded considerations. Part I also argues (as some originalists recognize, but stringently exclusive originalists do not) that the original meaning of constitutional language was frequently vague or indeterminate. Accordingly, the Constitution’s application to current issues would often require a mix of historical and normative analysis even if original history were the only kind of history that mattered. Part II offers a preliminary exploration of why so many kinds of historical inquiry bear on constitutional and sometimes on statutory …