Law Commons^™

Bankruptcy's Gray Area: Are Bankruptcy Courts "Courts Of The United States"?, Angelo G. Labate

Notre Dame Law Review

This Note seeks to evaluate the circuit split regarding the status of bankruptcy courts and propose a solution to the problem through an efficiency-based lens. After laying out a brief history of bankruptcy in the United States and the current bankruptcy system and outlining the circuit split within the courts of appeals as to the proper definition of “courts of the United States,” this Note will analyze the statutory language, the United States Code, and the relevant historical context to determine if the bankruptcy courts qualify as “courts of the United States.” This Note will argues that the bankruptcy courts …

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.

The Demise Of The Functionality Doctrine In Design Patent Law, Perry J. Saidman

Notre Dame Law Review

The doctrine of functionality, in both the validity and infringement contexts, has outlived its usefulness, and analyzing it is a waste of litigants’ and judicial resources.

Spill Your (Trade) Secrets: Knowledge Networks As Innovation Drivers, Laura G. Pedraza-Fariña

Notre Dame Law Review

Theories of intellectual property take the individual inventor or the firm as the unit of innovation. But studies in economic sociology show that in complex fields where knowledge is rapidly advancing and widely dispersed among different firms, the locus of innovation is neither an individual nor a single firm. Rather, innovative ideas originate in the informal networks of learning and collaboration that cut across firms.

Understanding innovation in this subset of industries as emerging out of networks of informal information-sharing across firms challenges traditional utilitarian theories of trade secret law—which assume trade secret protection is needed to prevent excessive private, …

Expired Patents, Trade Secrets, And Stymied Competition, W. Nicholson Price Ii

Notre Dame Law Review

Patents and trade secrecy have long been considered substitute incentives for innovation. When inventors create a new invention, they traditionally must choose between the two. And if inventors choose to patent their invention, society provides strong legal protection in exchange for disclosure, with the understanding that the protection has a limit: it expires twenty years from the date of filing. At that time, the invention is opened to the public and exposed to competition.

This story is incomplete. Patent disclosure is weak and focuses on one technical piece of an invention—but that piece is often only a part of the …

Boundaries, Extraterritoriality, And Patent Infringement Damages, Timothy R. Holbrook

Notre Dame Law Review

Patents are generally considered to be the most territorial of all the various forms of intellectual property. Even patent law, however, has confronted issues involving the application of a U.S. patent to extraterritorial activity. The Supreme Court has expressed an interest in both issues – the extraterritorial application of U.S. law and patent law. At times, these interests have intersected. Notwithstanding the Court’s recent elaborations on extraterritoriality, the approach by the U.S. Court of Appeals for the Federal Circuit has been, at best, inconsistent. At times the court has afforded extraterritorial protection, even in the face of strong territorial language …

Did Ebay Irreparably Injure Trademark Law?, Mark A. Lemley

Notre Dame Law Review

This Article argues that, while the Supreme Court's holding in eBay v. MercExchange was a good—indeed, great—development in patent and copyright law, trademark is different. The purposes of trademark law—and whom it benefits—should lead us to treat trademark injunctions differently than patent and copyright injunctions. Further, trademark courts have misinterpreted eBay, treating each of the four factors the Court enumerated as a requirement rather than a consideration. That is a particular problem in trademark law, where proof of future injury can be elusive. And perhaps most remarkably, courts have expanded eBay in trademark cases at the same time they have …

"Major Questions" As Major Opportunities, Riley T. Svikhart

Notre Dame Law Review

The future of the major question exception is a live question in the wake of King v. Burwell. This Note calls on federal courts to embrace the exception, for where a toothless nondelegation doctrine has failed to curtail the ceaseless growth of executive power experienced over the past century, a more aggressively applied major question exception can succeed in ensuring that policy questions of the deepest “economic and political significance” are left exclusively to the people’s representatives in Congress. In declining to defer to an executive agency’s interpretation of an ambiguous statute, federal courts must themselves assume “the task [of] …

Defining Fair Notice: Logical Outgrowth Doctrine Applied To The Waters Of The United States, Henry L. Lifton

Notre Dame Law Review

In 2014, the Corps of Engineers and Environmental Protection Agency sought to bring clarity to the scope of “waters of the United States” through notice-and-comment rulemaking. On June 29, 2015, the agencies published a joint final rule that immediately prompted lawsuits across the entire country.

This current legal controversy provides a convenient backdrop to propose a new method to analyze logical outgrowth. This Note will use the Proposed and Final Rule as an administrative law case study. It argues that the Final Rule is substantively within the authority Congress delegated to the Corps of Engineers and the EPA.

Penn Central Take Two, Christopher Serkin

Notre Dame Law Review

Penn Central v. New York City is the most important regulatory takings case of all time. There, the Supreme Court upheld the historic preservation of Grand Central Terminal in part because the City offset the burden of the landmarking with a valuable new property interest—a transferable development right (TDR)—that could be sold to neighboring property. Extraordinarily, 1.2 million square feet of those very same TDRs, still unused for over forty years, are the subject of newly resolved takings litigation. According to the complaint, the TDRs that saved Grand Central were themselves taken by the government, which allegedly wiped out their …

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 …

The Unsung Virtues Of Global Forum Shopping, Pamela K. Bookman

Notre Dame Law Review

Forum shopping gets a bad name. This is even more true in the context of transnational litigation. The term is associated with unprincipled gamesmanship and undeserved victories. Courts therefore often seek to thwart the practice. But in recent years, exaggerated perceptions of the “evils” of forum shopping among courts in different countries have led U.S. courts to impose high barriers to global forum shopping. These extreme measures prevent global forum shopping from serving three unappreciated functions: protecting access to justice, promoting private regulatory enforcement, and fostering legal reform.

This Article challenges common perceptions about global forum shopping that have supported …

Preclusion And Criminal Judgment, Lee Kovarsky

Notre Dame Law Review

The defining question in modern habeas corpus law involves the finality

of a state conviction: What preclusive effect does (and should) a criminal

judgment have? Res judicata and collateral estoppel —the famous preclusion

rules for civil judgments—accommodate basic legal interests in fairness,

certitude, and sovereignty. Legal institutions carefully calibrate the preclusive

effect of civil judgments because judicial resources are scarce, because

the reliability and legitimacy of prior process can vary, and because courts

wield the authority of a repeat-playing sovereign that will find its own civil

judgments attacked in foreign litigation. In stark contrast to the legal sophistication

lavished on …

Beyond Law And Fact: Jury Evaluation Of Law Enforcement, Lauren M. Ouziel

Notre Dame Law Review

Criminal trials today are as much about the adequacy and legitimacy of the defendant’s accusers—police and prosecutors—as the alleged deeds of the accused. Yet we lack theory to conceptualize this reality, doctrine to set its parameters, and institutional mechanisms to adapt to it. The traditional framework used by courts and scholars to delineate the jury’s role—along the continuum between “fact-finding” and “law-finding”—is inadequate to the task. Jury evaluations of law enforcement are more accurately conceptualized as enforcement-finding, a process that functions both in and outside that continuum. In considering enforcement-finding’s justification and proper scope, history offers a useful analytical frame. …

The Privacy Policymaking Of State Attorneys General, Danielle Keats Citron

Notre Dame Law Review

Much as Justice Louis Brandeis imagined states as laboratories of the law, offices of state attorneys general have been laboratories of privacy enforcement. State attorneys general have been nimble privacy enforcers whereas federal agencies have been more constrained by politics. Local knowledge, specialization, multistate coordination, and broad legal authority have allowed AG offices to fill in gaps in the law. State attorneys general have established baseline fair-information protections and expanded the frontiers of privacy law to cover sexual intimacy and youth. Their efforts have reinforced and strengthened federal norms, further harmonizing certain aspects of privacy and data security policy.

Although …

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 …

Copyright And Distributive Justice, Justin Hughes, Robert P. Merges

Notre Dame Law Review

Is our copyright system basically fair? Does it exacerbate or ameliorate

the skewed distribution of wealth in our society? Does it do anything at all

for disempowered people, people at the bottom of the socio-economic hierarchy?

In this Article we engage these questions. Our goal is to begin a more

comprehensive discussion of the effect the copyright system has on the allocation

of wealth in our society.

Naïve Energy Markets, David B. Spence

Notre Dame Law Review

Two interrelated trends—the growing popularity within the GOP of the conservative intellectual challenge to the New Deal consensus, and the rise to dominance of economic theory within regulatory and energy policy debates—have obscured the importance of regulation to well-functioning energy markets. This Article uses contemporary energy policy disputes to illustrate how and why energy markets can never resemble the idealized markets of economic theory that have become so popular in conservative policy discourse.

Reinvention, Sean B. Seymore

Notre Dame Law Review

It is axiomatic that once an invention has been patented, it cannot be patented again. This aligns with the quid pro quo theory of patents—the public would receive nothing new in exchange for the second patent. Enforcing this rule is done through the novelty requirement, which bars a patent if the invention is already known. But the rule is hard to justify if the original patentee reneged on the quid pro quo by inadequately disclosing how to make and use the invention. The inadequate disclosure suggests that the original inventor did not invent anything and the public received no benefit …

Capital Punishment Of Unintentional Felony Murder, Guyora Binder, Brenner Fissell, Robert Weisberg

Notre Dame Law Review

Under the prevailing interpretation of the Eighth Amendment in the lower courts, a defendant who causes a death inadvertently in the course of a felony is eligible for capital punishment. This unfortunate interpretation rests on an unduly mechanical reading of the Supreme Court’s decisions in Enmund v. Florida and Tison v. Arizona, which require culpability for capital punishment of co-felons who do not kill. The lower courts have drawn the unwarranted inference that these cases permit execution of those who cause death without any culpability towards death. This Article shows that this mechanical reading of precedent is mistaken, because the …

Data Breaches, Identity Theft, And Article Iii Standing: Will The Supreme Court Resolve The Split In The Circuits?, Bradford C. Mank

Notre Dame Law Review

In data breach cases, the plaintiff typically alleges that the defendant used inadequate computer security to protect the plaintiff’s personal data. In most, but not all cases, the plaintiff cannot prove that a hacker or thief has actually used or sold the data to the plaintiff’s detriment. In most cases, a plaintiff alleges that the defendant’s failure to protect his personal data has caused him damages by increasing his risk of suffering actual identity theft in the future and therefore imposed costs on the plaintiff when he reasonably takes measures to prevent future unauthorized third-party data access by purchasing credit …

Expecting The Unexpected, Mark A. Lemley

Notre Dame Law Review

One of the most important legal doctrines designed to decide whether an invention would be obvious to those in the field is the doctrine of “unexpected results.” If the patentee’s invention produced unexpected results, the law says, that is pretty good evidence that it wasn’t obvious. A second important doctrine is that if it is obvious to try to make something, and if those who might try would expect to succeed, making that thing is not patentable. These two doctrines can conflict, and they do with some frequency in the chemical and pharmaceutical industries. Courts have not yet decided how …

Subconstitutional Checks, Shima Baradaran Baughman

Notre Dame Law Review

Constitutional checks are an important part of the American justice system. The Constitution demands structural checks where it provides commensurate power. The Constitution includes several explicit checks in criminal law. Criminal defendants have rights to counsel, indictment by grand jury, and trial by jury; the public or executive elects or appoints prosecutors; legislatures limit actions of police and prosecutors; and courts enforce individual constitutional rights and stop executive misconduct. However, these checks have rarely functioned as intended because the Constitution and criminal law have failed to create—what I call—“subconstitutional checks” to adapt to the changes of the modern criminal state. …

The Criminalization Of Compliance, Todd Haugh

Notre Dame Law Review

Corporate compliance is becoming increasingly “criminalized.” What began as a means of industry self-regulation has morphed into a multi-billion-dollar effort to avoid government intervention in business, specifically criminal and quasi-criminal investigations and prosecutions. In order to avoid application of the criminal law, companies have adopted compliance programs that are motivated by and mimic that law, using the precepts of criminal legislation, enforcement, and adjudication to advance their compliance goals. This approach to compliance is inherently flawed, however—it can never be fully effective in abating corporate wrongdoing. Criminalized compliance regimes are inherently ineffective because they impose unintended behavioral consequences on corporate …

Law In The Time Of Cholera, Rhett B. Larson

Notre Dame Law Review

Thousands die each day from infections related to water, as evidenced in the ongoing crises of cholera in Haiti, Zika in the Western Hemisphere, and Legionnaires’ Disease in Flint, Michigan. Yet water law focuses primarily on two agendas. First, the “Blue Agenda” aims to provide an equitable allocation of water to individuals and communities while encouraging sustainable water management. Second, the “Green Agenda” aims to efficiently protect water in the natural environment from pollution. These two agendas often ignore, and can be inconsistent with, the “Red Agenda.” The Red Agenda addresses prevention of waterborne infections, like cholera, and the habitat …

A Disproportionate Response? The 2015 Proportionality Amendments To Federal Rule Of Civil Procedure 26(B), Matthew T. Ciulla

Notre Dame Law Review

On December 1, 2015, a set of amendments to the Federal Rules of Civil Procedure took effect. Among the most significant and contentious of these changes is the Rules’ renewed focus on the concept of proportionality in the scope of discovery, added in an effort to curb perceived over-discovery. This Note argues that the new Rule 26(b) is not likely to substantially further the Committee’s professed goals. Specifically, this Note shows that, even if over-discovery is a rampant problem with proportionality as its solution—a contention that is not well supported by empirical evidence—the new Rule 26(b) does little that will …

Arbitrariness Review Made Reasonable: Structural And Conceptual Reform Of The "Hard Look", Sidney A. Shapiro, Richard W. Murphy

Notre Dame Law Review

As Representative John Dingell remarked in the best sentence ever said on the power of procedure over substance, “I’ll let you write the substance . . . you let me write the procedure, and I’ll screw you every time.”1 Accordingly, designing procedures for legislative rulemaking, a dominant feature of modern governance, has spawned one of the most contentious debates in all of administrative law. Compounding the stakes, over the last fifty years, the courts, with help from Congress and presidents, have relentlessly made rulemaking procedures more burdensome, impeding efforts to preserve the environment, protect workers, and forestall financial collapse, among …

The First Amendment Walks Into A Bar: Trademark Registration And Free Speech, Rebecca Tushnet

Notre Dame Law Review

This Article analyzes the First Amendment arguments against section

2(a)’s disparagement bar with reference to the consequences of any

invalidation on the rest of the trademark statute. My fundamental conclusions

are that In re Tam is wrongly reasoned even given the Supreme Court’s

increased scrutiny of commercial speech regulations, and that to hold otherwise

and preserve the rest of trademark law would require unprincipled distinctions

within trademark law. More generally, the Supreme Court’s First

Amendment jurisprudence has become so expansive as to threaten basic

aspects of the regulatory state; the result of subjecting economic regulations

such as trademark registration to …

"Come Now Let Us Reason Together": Restoring Religious Freedom In America And Abroad, John Witte Jr, Joel A. Nichols

Notre Dame Law Review

American religious freedom used to be “taken for granted.” It’s now “up

for grabs.” So writes distinguished religious liberty scholar Paul Horwitz.

Until a generation ago, the opposite was true.

So matters stood a generation ago. But in the ensuing years, these special

legislative protections of religious freedom have come under increasing

attack.

Police Body-Worn Camera Policy: Balancing The Tension Between Privacy And Public Access In State Law, Kyle J. Maury

Notre Dame Law Review

Body camera implementation remains in its infancy stage. As such,

there is a dearth of legal scholarship analyzing the policy considerations associated

with body cameras. Instead of raising the issues involved and assessing

arguments for and against implementation, this Note assumes body cameras

are a force for good and are here to stay for the long haul. Consequently, the

goal of this Note is to analyze various issues involved in administering body

cameras against a backdrop of recently enacted state legislation—focusing

specifically on the tension between protecting privacy interests while also

ensuring public access to recordings. This Note examines these …