Law Commons^™

To Stay Or Not To Stay: Competing Motions In The Shadow Of Multidistrict Litigation, Emily M. Dowling

Notre Dame Law Review

This Note proceeds in three parts. Part I provides a basic overview of the inherent power, with an emphasis on the interaction between inherent power and jurisdiction. In Part II, it reintroduces the Opioid outcome and describes the mechanisms producing it by summarizing district courts’ varied approaches to resolving competing motions to remand or stay. In Part III, it identifies the flaws of those approaches and proposes an alternative solution, applying jurisdictional resequencing doctrine to the ordering inquiry and concluding that the remand must go first.

The Power Of Interpretation: Minimizing The Construction Zone, John O. Mcginnis, Michael B. Rappaport

Notre Dame Law Review

One of the most important conceptual innovations within modern originalism is the distinction between a zone of interpretation and a zone of construction. When constitutional provisions have a determinate meaning, decisions find that meaning occurs within the interpretation zone. But when the original meaning of a constitutional provision is indeterminate, decisions are based on something other than the original meaning and occur within the construction zone.

This Article represents the first sustained challenge to the importance of the distinction. It argues that a variety of techniques enhance the power of interpretation to resolve uncertainties and thus greatly reduce the size …

A Survivor's Perspective: Federal Judicial Selection From George Bush To Donald Trump, Leslie H. Southwick

Notre Dame Law Review

Over recent decades, federal judicial selection controversies are worsening in their frequency and intensity. They distort all three branches of government. My particular concern is with federal judicial selection for judgeships below the Olympian heights of those on the United States Supreme Court, namely, the judges on the twelve regional circuit courts of appeals and the ninety-four district courts.

The depth of partisan acrimony over judicial confirmations has placed us in the infernal regions, and we seem to be continuing our descent. Analyzing how we got there is invariably affected by the biases, or more gently, by the perspectives of …

Rethinking The Efficiency Of The Common Law, D. Daniel Sokol

Notre Dame Law Review

This Article shows how Posner and other scholars who claimed that common law was efficient misunderstood the structure of common law. If common law was more efficient, there would have been a noticeable push across most, if not all, doctrines to greater efficiency. This has not been the case. Rather, common law, better recast as a “platform,” could, under a certain set of parameters, lead to efficient outcomes. Next, the Article’s analysis suggests that while not every judge thinks about efficiency in decisionmaking, there must be some architectural or governance feature pushing in the direction of efficiency—which exists in some …

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 …

Gains, Losses, And Judges: Framing And The Judiciary, Jeffrey J. Rachlinski, Andrew J. Wistrich

Notre Dame Law Review

Losses hurt more than foregone gains—an asymmetry that psychologists call “loss aversion.” Losses cause more regret than foregone gains, and people struggle harder to avoid losses than to obtain equivalent gains. Loss aversion produces a variety of anomalous behaviors: people’s preferences depend upon the initial reference point (reference-dependent choice); people are overly focused on maintaining the status quo (status quo bias); people attach more value to goods they own than to identical goods that they do not (endowment effect); and people take excessive risks to avoid sure losses (risk seeking in the face of losses). These phenomena are so pervasive …

If The Text Is Clear—Lexical Ordering In Statutory Interpretation, Adam M. Samaha

Notre Dame Law Review

Most courts now endorse lexical ordering for statutory cases. That is, a limited set of top-tier sources, if adequately clear, are supposed to establish statutory meaning. Lower-tier sources are held in reserve for close calls. Examples include legislative history and deference to agency positions, which often are demoted into tiebreaking roles. In fact, some such hierarchy of sources is approved by working majorities at the U.S. Supreme Court and more than forty state supreme courts. Although popular today, lexically ordered interpretation has risen and fallen before. Indeed, we should pause to reconsider whether these instructions are justified and whether judges …

The Algorithm Game, Jane Bambauer, Tal Zarsky

Notre Dame Law Review

Most of the discourse on algorithmic decisionmaking, whether it comes in the form of praise or warning, assumes that algorithms apply to a static world. But automated decisionmaking is a dynamic process. Algorithms attempt to estimate some difficult-to-measure quality about a subject using proxies, and the subjects in turn change their behavior in order to game the system and get a better treatment for themselves (or, in some cases, to protest the system.) These behavioral changes can then prompt the algorithm to make corrections. The moves and countermoves create a dance that has great import to the fairness and efficiency …

Solitary Troubles, Alexander A. Reinert

Notre Dame Law Review

Solitary confinement is one of the most severe forms of punishment that can be inflicted on human beings. In recent years, the use of extreme isolation in our prisons and jails has been questioned by correctional officials, medical experts, and reform advocates alike. Yet for nearly the entirety of American history, judicial regulation of the practice has been extremely limited. This Article explains why judges hesitate to question the use of solitary confinement, while also providing a path forward for greater scrutiny of the practice.

Active Judging And Access To Justice, Anna E. Carpenter

Notre Dame Law Review

“Being a good judge in this environment means unlearning what you learned in law school about what a judge is supposed to do. Fairness is doing things a federal judge would never do.”

Active judging, where judges step away from the traditional, passive role to assist those without counsel, is a central feature of recent proposals aimed at solving the pro se crisis in America’s state civil courts. Despite growing support for active judging as an access to justice intervention, we know little, empirically, about how judges interact with pro se parties as a general matter, and even less about …

Justice Scalia, Implied Rights Of Action, And Historical Practice, Anthony J. Bellia

Notre Dame Law Review

This Essay examines a specific area that Justice Scalia influenced through the methods of interpretation that he applied—namely, the question of “implied rights of action.”

The idea that federal courts historically applied common law causes of action to remedy federal statutory violations without congressional authorization is a myth. From the first, federal courts heard only those causes of action that Congress had authorized them to hear. And there is reason to think that early federal courts would not have been understood to have power to define their own causes of action had Congress not provided this authorization from the start. …

Boyle As Constitutional Preemption, Bradford R. Clark

Notre Dame Law Review

Justice Scalia’s opinion for the Court in Boyle v. United Technologies Corp. arguably departed from his usual preferences by recognizing a government contractor defense as a matter of federal common law. This Essay offers an alternative rationale for the decision in Boyle grounded in constitutional preemption, and explains why this approach is more consistent with Justice Scalia’s broader methodological and constitutional commitments.

Reviewability And The "Law Of Rules": An Essay In Honor Of Justice Scalia, Adrian Vermeule

Notre Dame Law Review

Justice Scalia developed a consistent approach to questions of reviewability: roughly, the idea that “general programs” and “general policies” are to be excluded from judicial review, and even general and legally binding agency rules may or may not be reviewable before enforcement. On this approach, the proper business of courts is to review specific applications of agency rules to particular parties.

Keynote Address: Two Challenges For The Judge As Umpire: Statutory Ambiguity And Constitutional Exceptions, Brett M. Kavanaugh

Notre Dame Law Review

Justice Scalia believed in the rule of law as a law of rules. He wanted judges to be umpires, which ordinarily entails judges applying a settled legal principle to a particular set of facts. I agree with that vision of the judiciary. But there are two major impediments in current jurisprudence to achieving that vision of the judge as umpire. The first is the ambiguity trigger in statutory interpretation. The second is the amorphous tests employed in cases involving claimed constitutional exceptions. We should identify and study these issues. Inspired by Justice Scalia’s longstanding efforts to improve the law, we …

Justice Scalia And Class Actions: A Loving Critique, Brian T. Fitzpatrick

Notre Dame Law Review

I am not sure any other Justice of the Supreme Court in American history has done more to hinder the class action lawsuit than Justice Scalia did. Under the auspices of the Federal Arbitration Act (FAA), the Justice authored two majority opinions giving a green light to corporations that want to opt out of class-wide liability entirely so long as they do so using arbitration contracts. It is very hard to square these opinions with either the text or the history of the FAA.

In Part I of this Essay, I review the Justice’s class action opinions; I give special …

Originalism And Stare Decisis, Amy Coney Barrett

Notre Dame Law Review

The question whether stare decisis is compatible with originalism has occupied both originalists and their critics. In this Essay, I explore what light Justice Scalia’s approach to precedent casts on that question. I argue that while he did treat stare decisis as a pragmatic exception to originalism, that exception was not nearly so gaping as his “fainthearted” quip suggests. In fact, a survey of his opinions regarding precedent suggests new lines of inquiry for originalists grappling with the role of stare decisis in constitutional adjudication.

Justice Scalia And Sherman Act Textualism, Alan J. Meese

Notre Dame Law Review

This Essay offers a defense of Justice Scalia’s approach to the Sherman Act.

Justice Scalia's Unfinished Business In Statutory Interpretation: Where Textualism's Formalism Gave Up, Abbe R. Gluck

Notre Dame Law Review

Justice Scalia, in the end, was no interpretive formalist. He would not be pleased to hear this claim, but the fact is that formalism has not succeeded in statutory interpretation, and in fact, the textualism that Justice Scalia deserves so much credit for creating never really embraced formalism at all.

Textualism lacks all the conditions necessary for formalism. It does not have a defined set of predictable rules ordered to ensure objective application. Instead, we have more than one hundred interpretive presumptions—the presumptions favored by textualists—with no defined method of choosing among them. These doctrines of the field are not …

Beyond The Text: Justice Scalia's Originalism In Practice, Michael D. Ramsey

Notre Dame Law Review

This Essay considers the late Justice Antonin Scalia’s contributions to constitutional originalism as a practical methodology. Justice Scalia was the leading judicial theorist and advocate of originalism of his era, and his legacy has widely been assessed in those terms. He was also, along with Justice Clarence Thomas, the leading judicial practitioner of originalism of his era. This latter role has received less comprehensive attention. Although there are of course countless articles analyzing and critiquing his originalist methodology in particular cases, or seeking to demonstrate that certain of his opinions are inconsistent with his theoretical commitments, relatively few articles have …

The Limits Of Reading Law In The Affordable Care Act Cases, Kevin C. Walsh

Notre Dame Law Review

Justice Scalia’s leadership moved the law of interpretation closer to the central case of statutory interpretation appropriate for our constitutional order. He thereby lawfully improved that law over the course of his judicial tenure even though—over time—this involved transforming rather than simply transmitting the law of interpretation that had been handed down to him.

Did Justice Scalia Have A Theory Of Interpretation?, Gary Lawson

Notre Dame Law Review

It seems beyond bizarre to ask whether Justice Scalia had a theory of textual interpretation. If he did not have such a theory, what were he and his critics talking about for the past three decades? The answer is that they were talking about part of a theory of textual interpretation but not an actual, complete theory. A complete theory of textual interpretation must prescribe principles of admissibility (what counts towards meaning), significance (how much does the admissible evidence count), standards of proof (how much evidence do you need for a justified conclusion), burdens of proof (does inertia lie with …

Justice Scalia, The Nondelegation Doctrine, And Constitutional Argument, William K. Kelley

Notre Dame Law Review

This Essay canvasses Justice Scalia’s approach to the nondelegation doctrine by examining his two most prominent opinions in that field, Mistretta and Whitman. It goes on to critically examine the nature of the arguments he makes in those cases, and what his approach has to tell us about his overall approach to the judicial role.

Aggregation As Disempowerment: Red Flags In Class Action Settlements, Howard M. Erichson

Notre Dame Law Review

Class action critics and proponents cling to the conventional wisdom that class actions empower claimants. Critics complain that class actions over-empower claimants and put defendants at a disadvantage, while proponents defend class actions as essential to consumer protection and rights enforcement. This Article explores how class action settlements sometimes do the opposite. Aggregation empowers claimants’ lawyers by consolidating power in the lawyers’ hands. Consolidation of power allows defendants to strike deals that benefit themselves and claimants’ lawyers while disadvantaging claimants. This Article considers the phenomenon of aggregation as disempowerment by looking at specific settlement features that benefit plaintiffs’ counsel and …

The Exceptional Role Of Courts In The Constitutional Order, N.W. Barber, Adrian Vermeule

Notre Dame Law Review

This Article looks at a rare part of the judicial role: those exceptional cases when the judge is called upon to pass judgment on the constitution itself. This arises in three groups of cases, roughly speaking. First, in exceptional cases the validity of the constitution and the legal order is thrown into dispute. Second, on some occasions the judge is asked to rule on the transition from one constitutional order to another. Third, there are some cases in which the health of the constitutional order requires the judge to act not merely beyond the law, as it were, but actually …

Judicial Candor And Extralegal Reasoning: Why Extralegal Reasons Require Legal Justifications (And No More), Eric Dean Hageman

Notre Dame Law Review

This Note’s first Part explores two landmark Supreme Court cases, Planned Parenthood of Southeastern Pennsylvania v. Casey and NFIB, that may have been decided based on extralegal considerations. Part II describes three prominent theories of judicial candor with an eye to the results they might yield with respect to extralegal reasoning. Part III offers and defends a new, partial theory of judicial candor. This theory is that a judge who employs extralegal reasoning should omit discussion of her reliance on that reasoning and justify her decision with legal reasoning.

The first two Parts will demonstrate that there is a …

The Politics Of Statutory Interpretation, Margaret H. Lemos

Notre Dame Law Review

In a new book, Reading Law: The Interpretation of Legal Texts, Justice Antonin Scalia and Bryan Garner describe and defend the textualist methodology for which Justice Scalia is famous. For Scalia and Garner, the normative appeal of textualism lies in its objectivity: by focusing on text, context, and canons of construction, textualism offers protection against ideological judging—a way to separate law from politics. Yet, as Scalia and Garner well know, textualism is widely regarded as a politically conservative methodology. The charge of conservative bias is more common than it is concrete, but it reflects the notion that textualism narrows the …

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 …

The Rule Of Law And The Judicial Function In The World Today, Diarmuid F. O’Scannlain

Notre Dame Law Review

The world’s oldest written constitution still in effect has many inspiring lines, but perhaps the one that most stirs the souls of the patriotic appears in Article 30. Delineating a familiar separation of powers, that Article forbids the legislative, executive, and judicial branches from swapping or mixing functions. “[T]o that end”—and here’s the line—“it may be a government of laws and not of men.” John Adams, the author of that line and most of the rest of the Constitution of the Commonwealth of Massachusetts, penned those words in 1779, eight years before the adoption of the second oldest written constitution …

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 …