Law Commons^™

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. …

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 …

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 …

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 …

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 …

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 …

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?

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 …

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. …

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 …

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 …

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 …

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, …

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 …

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 …

Reversing Incorporation, Ilan Wurman

Notre Dame Law Review

It is originalist gospel that the Fourteenth Amendment’s Privileges or Immunities Clause was intended, at a minimum, to incorporate the Bill of Rights against the states. This Article revisits forty years of scholarship and concludes that this modern consensus is likely mistaken. Reconstructing antebellum discourse on fundamental rights reveals that the historical players assumed that every state must, as all free governments had to, guarantee and secure natural rights to their citizens. But that did not mean the states regulated these rights in the same way, nor did that dictate what the federal government’s role would be in guaranteeing and …

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, …

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 …

The Path Of Administrative Law Remedies, Aditya Bamzai

Notre Dame Law Review

The question whether the term “set aside” in the Administrative Procedure Act (APA) authorizes a federal court to vacate a rule universally—as opposed to setting aside the rule solely as to the plaintiffs—is a significant and contested one. This Essay traces the history of the statutory term “set aside” from its origins in the 1906 passage of the Hepburn Act to its 1946 placement in the APA. During this era, Congress repeatedly used the term “set aside” in agency review statutes. This Essay argues that, in doing so, Congress did not intend to depart from the underlying remedial framework created …

Due Deference: Kisor, Stinson, And The United States Sentencing Commission, Tim Steininger

Notre Dame Law Review

Under Kisor v. Wilkie, courts must defer to agencies’ interpretations of regulations when certain conditions are met. Lower courts continue to diverge, however, when it comes to the deference due the United States Sentencing Commission’s commentary. The Supreme Court has declined to come to the circuits’ aid. Commission commentary interprets its Guidelines. Guidelines are necessarily subject to the Administrative Procedure Act’s notice-and-comment requirements and congressional control; commentary is not. Given the heightened stakes inherent in sentencing, some argue that the rule of lenity should apply when a court considers deferring to commentary. This Note argues that such an approach …

Remarks At Notre Dame Law School, Brett M. Kavanaugh

Notre Dame Law Review

During the Notre Dame Law Review’s 2023 Federal Courts Symposium, students and faculty gathered in the McCartan Courtroom in Eck Hall for a conversation with Justice Kavanaugh. Dean G. Marcus Cole moderated and fielded questions from attendees. Highlights from the event, adapted for print, are reproduced below. Questions and responses have been lightly edited for readability and clarity.

Interpreting The Administrative Procedure Act: A Literature Review, Christopher J. Walker, Scott T. Macguidwin

Notre Dame Law Review

The modern administrative state has changed substantially since Congress enacted the Administrative Procedure Act (APA) in 1946. Yet Congress has done little to modernize the APA in those intervening seventy-seven years. That does not mean the APA has remained unchanged. Federal courts have substantially refashioned the APA’s requirements for administrative procedure and judicial review of agency action. Perhaps unsurprisingly, calls to return to either the statutory text or the original meaning (or both) have intensified in recent years. “APA originalism” projects abound.

As part of the Notre Dame Law Review’s Symposium on the History of the Administrative Procedure Act …

Vacatur, Nationwide Injunctions, And The Evolving Apa, Ronald M. Levin

Notre Dame Law Review

The courts’ growing use of universal or nationwide injunctions to invalidate agency rules that they find to be unlawful has given rise to concern that such injunctions circumvent dialogue among the circuits, promote forum shopping, and leave too much power in the hands of individual judges. Some scholars, joined by the Department of Justice, have argued that such judicial decisions should be limited through restrictive interpretations of the Administrative Procedure Act (APA).

This Article takes issue with these authorities. It argues that the courts’ use of the APA to vacate a rule as a whole—as opposed to merely enjoining application …

The Apa As A Super-Statute: Deep Compromise And Judicial Review Of Notice-And-Comment Rulemaking, William N. Eskridge Jr., John Ferejohn

Notre Dame Law Review

The Administrative Procedure Act of 1946 (APA) is a “super-statute,” creating a robust, enduring governance structure for the modern regulatory state. An emerging literature on “APA originalism” maintains that some of the judge-created rules of administrative law are inconsistent with the APA’s original public meaning and therefore illegitimate. In the context of notice-and-comment rulemaking, some academics and judges wield APA originalism as a reason to abrogate the presumption of judicial review, hard-look review of agency factual conclusions, and judicial deference to agency interpretations of law. Some of the judges who would apply original public meaning to those issues have asserted …

A Lack Of Uniformity, Compounded, In Immigration Law, Jill E. Family

Notre Dame Law Review

The Administrative Procedure Act (APA) is known for bringing standardization to federal agency behavior. The APA’s framework for adjudication, however, is lax and incomplete. It provides standards, but only meaningfully for formal adjudication, and Congress rarely requires agencies to follow the APA’s formal adjudication procedures. The APA, therefore, expressly allows for nonuniform adjudication in that it requires little of the informal adjudication category that makes up the lion’s share of agency adjudication.

This lack of uniformity in adjudication is prominent in immigration law. When federal agencies adjudicate whether to remove (deport) an individual from the United States, those agencies act …

Textualism And The Administrative Procedure Act, Kristin E. Hickman, Mark R. Thomson

Notre Dame Law Review

In recent years, the Supreme Court occasionally has applied a more limited approach to textualist reasoning that, if applied to the APA, could expand the perceived gulf between textualism and existing administrative law doctrine. Our purpose with this Essay is to explore the implications of this trend for APA interpretation, particularly as it might apply to agency rulemaking. We do not purport to address critics of textualism as an interpretive methodology; we speak primarily to those who are persuaded of textualism’s merits. We also will not try to resolve all the many disagreements about textualism’s variations or the APA’s meaning. …

Preemption Exemption: Fda-Approved Abortion Drugs After Dobbs, Jared C. Huber

Notre Dame Law Review

Dobbs v. Jackson Women’s Health Organization held that no constitutional right to abortion exists, overruling Roe v. Wade and Planned Parenthood of Southeastern Pennsylvania v. Casey. After Dobbs, states are free to regulate abortion as they see fit. Under Roe and Casey’s old regime, a state could not regulate abortion in a way that presented an “undue burden on a woman’s ability” to decide to abort. The Court handed down many cases which attempted to bring clarity to the murky standard. But the conglomeration of interpretation is now wiped away.

In Dobbs’s wake, states and the …