Law Commons^™

Getting Into Equity, Samuel L. Bray, Paul B. Miller

Notre Dame Law Review

For two centuries, common lawyers have talked about a “cause of action.” But “cause of action” is not an organizing principle for equity. This Article shows how a plaintiff gets into equity, and it explains that equity is shaped by the interplay of its remedial, procedural, and substantive law. Equity is adjectival, that is, it modifies law rather than the other way around. Its power comes from remedies, not rights. And for getting into equity, what is central is a grievance. To insist on an equitable cause of action is to work a fundamental change in how a plaintiff gets …

Equity's Atrophy, Andrew Kull

Notre Dame Law Review

Current U.S. law sees numerous decisions from which a once- predictable, traditional equitable corrective has simply disappeared. The salient cases are those in which, until recently—recent history for this purpose comprising just one or two generations of lawyers and judges—equitable intervention would have been at least highly likely: because the unmodified legal outcome diverges so plainly from equity and good conscience, and because an established equitable response was part of what everybody knew. The idea that equity in U.S. law has been losing some previous degree of vitality is so venerable that it can scarcely be debatable at this point,11 …

Standing, Equity, And Injury In Fact, Ernest A. Young

Notre Dame Law Review

This contribution to the Notre Dame Law Review’s annual Federal Courts Symposium on “The Nature of the Federal Equity Power” asks what the traditions of equity can tell us about Article III standing. I take as my point of departure the observation by Professors Sam Bray and Paul Miller, in their contribution to the Symposium, that equity does not have causes of action as such—or at least not in the same way as actions at law. This is potentially important for standing, as many academic critiques of the Supreme Court's standing jurisprudence have argued that standing should turn on …

Constitutional Tolling And Preenforcement Challenges To Private Rights Of Action, Michael T. Morley

Notre Dame Law Review

A person wishing to challenge the constitutionality of a law that regulates their conduct typically may sue the government official responsible for enforcing that provision for declaratory and injunctive relief pursuant to Ex parte Young. This approach is generally unavailable, however, when a plaintiff seeks preenforcement relief against laws that are enforceable exclusively through a private right of action. In such cases, there is no government official against whom to bring a typical Young claim, and constraints such as sovereign immunity and justiciability requirements often pose insurmountable obstacles. A person subject to an apparently unconstitu-tional law that is enforced …

Equity And The Sovereign, Mila Sohoni

Notre Dame Law Review

Equity traces its genesis to kingly power. But the new American constitutional order shattered the crown and left equity unanchored. Who or what, if anything, inherited the role of the sovereign in federal equity? Is the sovereign the executive branch—or is it Congress? Is it “the United States” or “the people of the United States”? However we conceive of the sovereign, is the sovereign entitled to special deference in a federal court of equity—or to the reverse?

Federal courts have not arrived at consistent answers to these puzzles. They have vacillated on who the sovereign is. And they have vacillated …

Abstaining Equitably, Fred O. Smith Jr.

Notre Dame Law Review

The doctrine of Younger abstention—which counsels federal courts not to interrupt ongoing state criminal proceedings—balances dueling considerations. On the one hand, the doctrine preserves federal courts’ ability to exercise Congressionally conferred, properly invoked jurisdiction to prevent irreparable violations of the federal constitution. On the other, the doctrine provides space for autonomous state courts to carry out their traditional role in the realm of criminal justice. This Essay identifies four central features of the Younger doctrine that maintain this balance. By protecting these features, federal courts can ensure that Younger remains a doctrine of equitable restraint, instead of inequitable abdication.

First, …

Payors, Players, And Proximate Cause, Elisabeth F. Crusey

Notre Dame Law Review

At issue is whether pharmaceutical companies’ allegedly misleading drug labels that providers rely upon when prescribing drugs to patients, which plaintiffs classify as mail and wire fraud, are the proximate causes of third-party payors (TPPs) overpaying for medication, or enduring a financial injury, such that the TPPs fulfill RICO standing under 18 U.S.C. § 1964(c). Included in this issue are questions about whether the alleged RICO violations directly caused the TPPs’ financial injuries such that plaintiffs meet the proximate cause requirements under § 1964(c) to state a valid claim. Presently, the First, Third, and Ninth Circuits agree that allegations of …

Attorneys, E-Discovery, And The Case For 37(G), Marilyn G. Mancusi

Notre Dame Law Review

There are currently various sources of authority that federal courts can invoke to sanction attorneys who bungle their e-discovery obligations, but each is insufficient. All fifty states have their own rules authorizing courts within the state to refer misbehaving attorneys to the local disciplinary body, but each state’s rule is different, leading to much inconsistency and lack of uniformity among the federal courts. The Federal Rules of Civil Procedure (“FRCP”) address e-discovery abuse but do not authorize courts to impose sanctions on attorneys for their role in e-discovery abuse. This is a problem because attorneys have ethical and professional obligations …

Ndls Communicator: Week Of 05.23.22, Notre Dame Law School

NDLS Communicator

The Latest News

• Paolo Carozza named to Meta Oversight Board
• ND Law’s Religious Liberty Clinic files amicus brief to protect rights of religious health care workers and hospitals
• ND Law creates a new exchange program with Strathmore Law School in Kenya
• ND Law hosts interfaith dinner in observance of Ramadan, Passover, and Easter
• Sherif Girgis writes for the Volokh Conspiracy
• Lloyd Mayer quoted by New York Times
• Sam Bray quoted by Yahoo Finance
• Rick Garnett quoted by Religion News Service
• Rick Garnett co-authors book providing analysis of Supreme Court cases on religious freedom

Alumni News

• Notes From the Field: Supporting …

Brief Of Amicus Curiae Notre Dame Law School Religious Liberty Initiative, Megan M. Wold, John A. Meiser

Court Briefs

No. 22-cv-000067
Columbus City School District v. State of Ohio

Judge Jaiza N. Page

From the Summary of Argument

Under Count 4 of their complaint, the plaintiffs ask this Court to do something that it unquestionably may not: invalidate Ohio's longstanding EdChoice Scholarship Program on the theory that it violates the "no-funding" provision of Article VI, § 2 of the Ohio Constitution, which bars any "religious or other sect" from receiving "any part of the school funds of this state." See Compl. ¶¶ 142-52. Under both state and federal law, this Court must dismiss that claim.

Brief Of Amici Curiae Catholic Medical Association And Coptic Medical Association Of North America In Support Of Appellees, Eric N. Kniffin, John A. Meiser, Francesca M. Genova

Court Briefs

No. 2021CA1855
Barbara Morris v. Centura Health Corporation

Appeal from: Colorado District Court, Arapahoe County Case No. 2019CV31980 (Hon. Peter Frederick Michaelson)

From the Summary of Argument

At its core, this case concerns a religious hospital’s right to provide care in accordance with its faith commitments. Centura Health is a Christian healthcare system that is composed of Catholic and Seventh-day Adventist hospitals, including St. Anthony Hospital, the Catholic Hospital for which Dr. Morris worked. In service of their religious mission, Centura Health and St. Anthony Hospital (collectively, “Centura”) require their doctors to abide by the Ethical and Religious Directives for …

Ndls Communicator: Week Of 05.16.22, Notre Dame Law School

NDLS Communicator

The Latest News

• Notre Dame officials call for the release of Cardinal Zen, SDB, Catholic bishop emeritus of Hong Kong
• Media coverage: Supreme Court breach and the pending Supreme Court abortion case decision

Student News

• The Klau Center announces 2022 Summer Fellows

Alumni News

• Jaylen Amaker, a recent graduate, is a co-chair of DREAM’s Inaugural Alumni Councill

Events

• Wednesday, May 18: All Staff Training, 8 a.m, McKenna B02
• Virtual Staff Town Hall, 1:30 p.m.

We will celebrate our Law School Class of 2020 over Memorial Day Weekend

• Saturday, May 28, 2022 (Class of 2020): 10 a.m. Hooding & Diploma Ceremony, …

Professor Veronica Root Martinez, Diploma Ceremony Address, Veronica Root Martinez

Commencement Programs

Law Professor, Veronica Root Martinez, Robert & Marion Short Scholar, Director, Program on Ethics, Compliance & Inclusion, and the Law School Distinguished Teacher, delivered the diploma ceremony address to the Class of 2022 on May 14, 2022.

177th Commencement Mass Program, University Of Notre Dame

Commencement Programs

Vigil Mass for the Fifth Sunday of Easter

Presiding Celebrant and Homilist: Reverend John I. Jenkins, C.S.C., President of the University

177th University Of Notre Dame Commencement Program, University Of Notre Dame

Commencement Programs

The Commencement Program includes

• Schedule of Events
• Graduate School Commencement Ceremony
• Mendoza College of Business
• School of Architecture
• Law School Diploma Ceremony [see pages 43–47]
• University Commencement Exercises
• College of Arts and Letters Diploma Ceremony
• College of Science
• College of Engineering
• Mendoza College of Business
• School of Architecture
• Valedictorian Candidates
• 2022 Emeriti Faculty
• Honor Societies
• Awards and Prizes [Law School pages 89–90]

Brief Of Professor Derek T. Muller As Amici Curiae In Support Of No Party, Michael Francisco, Michael A. Brody, Derek T. Muller

Court Briefs

No. 22-11299
Marjorie Taylor Greene v. Secretary of State for the State of Georgia

Appeal from the United States District Court for the Northern District of Georgia
No. 1:22-cv-01294-AT

From the Summary of Argument

Appellees present an issue that seeks something unprecedented: that this Court be the first federal appeals court in history to approve the State’s power to disqualify a congressional candidate. But States lack the power to exclude a congressional candidate from the ballot over a qualification that a candidate might ultimately meet when she presents her credentials to Congress. The district court’s decision should be reversed.

Ndls Communicator: Week Of 05.09.22, Notre Dame Law School

NDLS Communicator

The Latest News

• Media coverage: Supreme Court breach and the pending Supreme Court abortion case decision
• Julian Velasco promoted to full professor
• Avishalom Tor joins IBPPA advisory board
• Keith Cooper — a man whose wrongful conviction inspired the creation of the Exoneration Justice Clinic reached a $7.5 million settlement with the city of Elkhart, Indiana. Adjunct Professor Elliot Slosar is Cooper’s attorney.
• The Law School and the Law School of the Ukrainian Catholic University will host a webinar today with several panel discussions on the legal challenges posed by Russia’s invasion of Ukraine.

Commencements Law School Specific Events:

Friday, May …

Ndls Communicator: Week Of 05.02.22, Notre Dame Law School

NDLS Communicator

The Latest News

• Rick Garnett and RLI fellow Joseph Graziano write for Newsweek about the Kennedy vs. Bremerton School District Supreme Court case
• Nicole Garnett and 3L student Elizabeth Totzke write op-ed on religious liberty cases for City Journal
• Other Media coverage of Kennedy v. Bremerton RLI case
• Diane Desierto files amicus brief in Supreme Court case
• Avishalom Tor publishes new edited Law and Economics book
• Jeff Pojanowski and Paul Miller on the Private Law Podcast
• Emily Bremer receives award from AALL
• Carter Snead quoted in The Daily Beast
• Yan Yu presents at AALL Law Repositories Caucus conference
• Felicia Caponigri …

Taking (Equal Voting) Rights Seriously: The Fifteenth Amendment As Constitutional Foundation, And The Need For Judges To Remodel Their Approach To Age Discrimination In Political Rights, Vikram D. Amar

Notre Dame Law Review

This Essay explores the relationship between twentieth-century voting-discrimination amendments and the Fifteenth Amendment’s antidiscrimination groundwork on which these later developments built. In particular, it examines ways in which the Twenty-Sixth Amendment, whose text and ratification conversations tightly track those of the Fifteenth Amendment, has been underimplemented, if not completely ignored, in recent debates and cases that are ever-more crucial to the meaning of political-rights equality under the Constitution. It ends by urging courts to take more seriously the similarities between the Twenty-Sixth and Fifteenth Amendments in adjudicating disputes involving facial or de facto age discrimination in political rights realms.

The Work Is Not Done: Frederick Douglass And Black Suffrage, Bradley Rebeiro

Notre Dame Law Review

Since antiquity, political theorists have tried to identify the proper balance between ideals and pragmatism in political and public life. Machiavelli and Aristotle both offered prudence as an approach, but with different ends in mind: stability and the good, respectively. Among the many contributions Kurt Lash’s two-volume set on the Reconstruction Amendments provides to present-day discourse, it supplies the careful reader an answer to this timeless question by highlighting the role of Frederick Douglass in public deliberation over the Fifteenth Amendment. In this Essay I argue that Amer-ican abolitionist, social reformer, and statesman Frederick Douglass illustrates and enacts the Aristotelian …

Understanding Terminations For “Disability-Caused Misconduct” As Failures To Provide Reasonable Accommodation, Michael S. Verdichizzi

Notre Dame Law Review

The Note proceeds as follows. Part I provides a primer on the sorts of disability discrimination the ADA prohibits, with a special focus on the three types of claims one may bring under the act: disparate treatment, disparate impact, and failure to accommodate. Part II explores the current state of the misconduct issue in the disability discrimination context and demonstrates the circuit split by way of case analyses. Part III presents the principal argument of this Note, that uncontroversial canons of statutory interpretation demonstrate the erroneousness of the majority view, that the majority view hinders the ADA’s objective of equal …

The Incorporation Of The Republican Guarantee Clause, Jason Mazzone

Notre Dame Law Review

This Article makes the case for understanding the Fourteenth Amendment to incorporate the Republican Guarantee Clause of Article IV. Incorporation shifts the focus of the Guarantee Clause from the interests of states to the interests of citizens; from protecting popular sovereignty as a political ideal to safeguarding more specifically rights that citizens hold and exercise in a republican system. Once incorporated, the Guarantee Clause should be understood to require states themselves to maintain a republican form of government and to act to correct departures from republicanism within their own governing arrangements. In addition, an incorporated Guarantee Clause informs the meaning …

The Lawfulness Of The Fifteenth Amendment, Travis Crum

Notre Dame Law Review

One of the most provocative debates in constitutional theory concerns the lawfulness of the Reconstruction Amendments’ adoptions. Scholars have contested whether Article V permits amendments proposed by Congresses that excluded the Southern States and questioned whether those States’ ratifications were obtained through unlawful coercion. Scholars have also teased out differences in how States were counted for purposes of ratifying the Thirteenth and Fourteenth Amendments. This debate has focused exclusively on the Thirteenth and Fourteenth Amendments, dismissing the Fifteenth Amendment as a mere sequel.

As this Essay demonstrates, the Fifteenth Amendment’s ratification raises unique issues and adds important nuance to this …

Calling Balls And Strikes? Chief Justice Roberts In October Term 2019, Meghan Dalton

Notre Dame Law Review

Part I of this Note will outline the scope of the assignment power, focusing on the strategic considerations a Chief Justice can make in assigning opinions. Part II will analyze Roberts’s voting and assignment patterns in October Term 2019, specifically applying the earlier discussions to his assignment choices in three key cases decided this term. Part III will focus on Chief Justice Roberts’s jurisprudential values and explore how these concerns might have informed his decision making in October Term 2019. Finally, this Note concludes by asking to what extent Roberts’s recent assignment choices are consistent with his signature promise to …

Diversity & Inclusion Update, Student Bar Association

Dignity, Solidarity, and Subsidiarity Resources

Asians, Native Hawaiians, and other Pacific Islanders and the legal profession.

Beefing Up Skinny Labels: Induced Infringement As A Question Of Law, Garrett T. Potter

Notre Dame Law Review

This Note proposes a novel argument for improving the application of induced infringement by splitting its elements into separate questions of fact and law, incorporating the relevant perception and reasoning of both judge and jury. Part I provides a primer of the Hatch-Waxman Act and interactions (and lack thereof) between the USPTO and FDA in regulating pharmaceutical compositions. Part II assesses the historical landscape that led to the codification of induced infringement. Part III concludes by proposing an alternate approach by treating an element of induced infringement as a question of law, rather than a question of fact, and sets …

Prosecution In Public, Prosecution In Private, Lauren M. Ouziel

Notre Dame Law Review

Criminal procedure has long set a boundary between public and private in criminal enforcement: generally speaking, enforcement decisions at the post-charging stage are exposed to some degree of public view, while those at the pre-charging stage remain almost entirely secret. The allocation of public and private is, at heart, an allocation of power—and the current allocation is a relic. When private prosecutors were the mainstay of criminal enforcement, public court processes effectively constrained them. But those processes do little to constrain the spaces where enforcement power today resides: in decisions by the servants of a state-run, professionalized enforcement apparatus on …

The Intent Of The Framer: John Bingham’S Fourteenth Amendment, Michael Zuckert

Notre Dame Law Review

It is not often that a single individual is responsible for constitutional provisions as important as Sections 1 and 5 of the Fourteenth Amendment. My project in this Essay is not to engage in a study of original intent, or original public meaning, or however we wish now to characterize the originalist project, but to engage in a quest for John Bingham’s Amendment, for understanding the Amendment as he understood it. Whether this gives us an authoritative reading of the Amendment for the purposes of constitutional interpretation and adjudication is a separate issue. I treat Bingham as an author and …

How Favored, Exactly? An Analysis Of The Most Favored Nation Theory Of Religious Exemptions From Calvary Chapel To Tandon, Luray Buckner

Notre Dame Law Review

In this Note, I argue that Justice Kavanaugh’s most favored nation test for religious exemptions actually differs from the one employed by the majority of the Court in Tandon. The majority’s formulation of the test is vague and explicitly requires courts to engage in a fact-intensive comparability analysis. Practically, lower courts applying Tandon to religious exemption questions have exploited this comparability step to rule against religious claimants generally, but more specifically to deny them strict scrutiny. Because the Tandon test was formulated to apply to all free exercise claims, the test is necessarily framed in more general terms and …

The Impending Collision Of Smart Contracts And The Automatic Stay, Carter D. Wietecha

Notre Dame Law Review

This Note begins by briefly examining the nature and function of smart contracts, including how they have changed over time. Next, it evaluates the relevant language of Code provisions dealing with the automatic stay and discusses decisions treating the interaction of early generation smart contracts with the automatic stay. It concludes with a discussion of how the Supreme Court’s recent decision in City of Chicago v. Fulton has significantly changed the legal landscape for smart contracts and how the automatic stay will likely interact with smart contracts in the near future.