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Mmu: 12/04/23–12/10/23, Student Bar Association

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Ndls Communicator: Week Of 12.4.23, Notre Dame Law School

NDLS Communicator

The Latest News

• ND Law honors Professor Jimmy Gurulé and alumna Alyssa Phillips at 2023 Rev. David T. Link Public Interest Banquet
• Marc Moore, Global Distinguished Professor of Law at the Notre Dame London Law Programme, recently published a new book, “A Research Agenda for Corporate Law.”
• Sherif Girgis published an article in the New York University Law Review that examines the Supreme Court's "living traditionalism."
• Nicole Garnett was quoted in an article by the UPI about St. Isadore Catholic Virtual School in Oklahoma.
• Derek Muller was quoted by Bloomberg Law News in "Voting Rights Law Faces More Setbacks With …

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. …

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 …

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 …

A Non-Categorical Approach To Free Exercise Rights, Elizabeth A. Clark

Notre Dame Law Review Reflection

The unconstitutional conditions doctrine, which holds that “the government may not deny a benefit to a person because [that person] exercises a constitutional right,” has been applied inconsistently to matters within the Free Exercise Clause and without, including entitlements to unemployment benefits, licenses to proselyte, educational benefits, and the right to run for public office.

In this Essay, I use the way the Supreme Court has applied the unconstitutional conditions doctrine and other anomalous cases, history, and comparative law to reconstruct a more nuanced Free Exercise regime, one that in many ways more closely parallels U.S. protections for speech and …

A Textualist Defense Of A New Collateral Order Doctrine, Adam Reed Moore

Notre Dame Law Review Reflection

As a general rule, federal appellate courts have jurisdiction over “final decisions.” Though the rule seems simple enough, the Court’s current approach to interpreting “final decisions,” the collateral order doctrine, is anything but straight­forward. That is because the Court has left the statutory text by the wayside. The collateral order doctrine is divorced from statutory text and is instead based on policy considerations.

Commentators (and, at times, the Court) have offered an alternative reading of “final decisions”: the final-judgment rule. This rule would allow appeals from final judgments only. But this alternative is not the product of close textual analysis. …

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 …

Presidential Power And What The First Congress Did Not Do, Michael D. Ramsey

Notre Dame Law Review Reflection

Scholars, advocates, and judges have long debated the scope of the President’s “executive Power” under Article II, Section 1, of the Constitution. New articles by, among others, Professors Jean Galbraith, Julian Mortenson, Jed Shugerman, and Ilan Wurman have sharply rekindled those contentions, particularly with regard to the President’s power to remove executive officers and to conduct the foreign affairs of the United States. This Essay takes a close look at one piece of the executive power puzzle: what the First Congress did and did not do in 1789 regarding the powers of the President. Unlike prior accounts, which have devoted …

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 …

Midstream Contract Interpretation, Alan Schwartz, Simone M. Sepe

Notre Dame Law Review

This Article makes two original contributions to the contract interpretation and renegotiation literatures. First, we introduce an underexplored cause of renegotiation failure: party uncertainty regarding the type of court that will interpret their contract. Parties may predict differently how the applicable court will weigh facts, apply legal rules, or interpret contracts. When parties disagree regarding the court’s interpretive practices, they will assess their expected litigation payoffs differently. This could cause parties to litigate transactions rather than complete them, even when the parties agree on the economic parameters. Litigators know that differing predictions about what a court will do can impede …

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 …

Did The Court In Sffa Overrule Grutter?, Bill Watson

Notre Dame Law Review Reflection

In Students for Fair Admissions, Inc. v. President and Fellows of Harvard College (SFFA), the Supreme Court held that affirmative action programs designed to comply with the precedent set in Grutter v. Bollinger were unlawful. Yet the Court nowhere said that it was overruling Grutter and, in fact, relied on Grutter as authority. Neither the Justices themselves nor subsequent commentators have been able to agree on what, if anything, remains of Grutter today. Did SFFA overrule Grutter or not? This Essay analyzes that question and its normative fallout. The Essay concludes that SFFA at least partially overruled Grutter and that …

Qualified Immunity As Gun Control, Guha Krishnamurthi, Peter N. Salib

Notre Dame Law Review Reflection

The Supreme Court’s ruling in New York State Rifle & Pistol Ass’n v. Bruen threw the political project of gun regulation into question. Before Bruen, states could enact new kinds of gun restrictions if they passed a relatively stringent means-ends test. That is, if laws meaningfully reduced danger, while not too heavily burdening the right to self-defense, they were allowed. After Bruen, only gun controls actually in force in the Founding Era, and their close analogues, are permissible. Many fewer regulations will now pass the constitutional test.

Here, we suggest an unlikely source of continuing power, after Bruen, for states …

Notre Dame Lawyers Connect: December 2023, Notre Dame Law School

Notre Dame Lawyers Connect

Merry Christmas from Notre Dame Law School

Rev. Robert A. Dowd, C.S.C, elected 18th president of the University of Notre Dame

ND Law Honors Professor Jimmy Gurule and alumna Alyssa Phillips at 2023 Rev. David T. Link Public Interest Banquet

ND Law School hosts panel discussion to honor Justice Richard Goldstone at the Constitutional Court of South Africa

Events - Slainte! Wine, Beer, Spirits | Industry Symposium

Faculty - Fighting to Defend Human Rights

Alumni Spotlights - John F. Crowley, ‘92 J.D.

ND Law Moot Court Board hosts eighth annual religious freedom tournament

Alumni Notes

• Michelle Porter
• Judge Cristal Brisco …

Law School Rankings And Federal Policies Regarding Disclosure About Affordability, Derek T. Muller

Journal Articles

The affordability and value of higher education are matters of enduring public conversation. Increased scrutiny has led to increased disclosure. And for legal education, the affordability of legal education has been publicly debated. Affordability data has even been included in the rankings of law schools, which have recently faced pushback from law schools themselves. This essay describes the conversation and debate around law school rankings and affordability data, and it offers some ways for federal policy to help improve affordability disclosures for legal education.

Brief Amicus Curiae Of The Notre Dame Law School Religious Liberty Clinic Supporting Plaintiff-Appellant, Francesca Matozzo, John Meiser

Court Briefs

Nos. 23-35560, 23-35585
Cedar Park Assembly of God of Kirkland, Washington v. Myron "Mike" Kreidler

Appeal from the United States District Court for the Western District of Washington, Civil Case No. 3:19-cv-05181-BHL (Hon. Benjamin H. Settle)

From the Argument

Cedar Park’s free-exercise claim is fundamentally distinct from—and demands closer scrutiny than—its equal-protection claim.

Mmu: 11/27/23–12/03/23, Student Bar Association

Monday Morning Update

This Week @ NDLS

Mass Times

Commons Daily Menu

General Announcements

Ndls Communicator: Week Of 11.27.23, Notre Dame Law School

NDLS Communicator

The Latest News

• Jay Tidmarsh presented his paper (co-authored with Tladi Marumo) on the subject of class representatives and class objectors at the University of Texas Law School on November 13.
• Paul Miller and Sam Bray have just published "Christianity and Equity,” which is a chapter in "The Oxford Handbook of Christianity and Law," edited by John Witte, Jr. and Rafael Domingo.
• Mark Hill KC and David H. McIlroy from the London Law Programme also contributed chapters in the handbook.
• Mary Ellen O’Connell has two new publications out. "The Role of Natural Law in the Rise and Decline of European …

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, …

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 …

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, …

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 Circumstances), 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 "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 …

Intervenor St. Isidore Of Seville Catholic Virtual School's Brief In Response To Petitioner's Application And Petition, Michael H. Mcginley, Steven A. Engel, M. Scott Proctor, John A. Meiser, Michael R. Perri, Socorro Adams Dooley

Court Briefs

No. MA-121694
Gentner Drummond v. Oklahoma Statewide Virtual Charter School Board

From the Arguments and Authorities

The Petition fails on the merits. Nothing in the Oklahoma Constitution prohibits the State from contracting with a religious school to provide new educational opportunities. And any state law purporting to do so would violate ORFA and the First Amendment.