Law Commons^™

Constitutional Development Of Estonia In 1988, Igor Gryazin

Notre Dame Law Review

No abstract provided.

Fact-Finding And The Death Penalty: The Scope Of A Capital Defendant's Right To Jury Trial, Welsh S. White

Notre Dame Law Review

No abstract provided.

Reflections On The Philosophy Of Law, Parts I & Ii, Igor N. Grazin

Notre Dame Law Review

No abstract provided.

Erisa -- Nieto V. Ecker: The Propriety Of Non-Fiduciary Liability Under Section 409, Kevin B. Bogucki, Charles P. Cullen, Judith Ann Hagley

Notre Dame Law Review

No abstract provided.

The Contractual Prohibition Of Assignment In Austrian Law, Fritz Raber

Notre Dame Law Review

No abstract provided.

Constitutional Law -- Eimann V. Soldier Of Fortune And "Negligent Advertising" Actions: Commercial Speech In An Era Of Reduced First Amendment Protection, Donald B. Allegro, John D. Ladue

Notre Dame Law Review

No abstract provided.

The Takings Clause: A Modern Plot For An Old Constitutional Tale, Richard G. Wilkins

Notre Dame Law Review

No abstract provided.

The Least Activist Supreme Court In History? The Roberts Court And The Exercise Of Judicial Review, Keith E. Whittington

Notre Dame Law Review

Not too many years ago, scholars could reasonably speak of the U.S. Supreme Court as being among the most activist in American history. Both empirical and normative scholarship was driven by the sense of a Court that was aggressive in the assertion of its own supremacy and active in the exercise of the power of judicial review. The Court under Chief Justice John Roberts cannot be viewed in the same way. The Roberts Court has issued its share of controversial constitutional decisions, but a rarely observed but important feature of the Roberts Court is its unusual restraint in the exercise …

The "Constitution In Exile" As A Problem For Legal Theory, Stephen E. Sachs

Notre Dame Law Review

How does one defend a constitutional theory that’s out of the mainstream? Critics of originalism, for example, have described it as a nefarious “Constitution in Exile,” a plot to impose abandoned rules on the unsuspecting public. This framing is largely mythical, but it raises a serious objection. If a theory asks us to change our legal practices, leaving important questions to academics or historians, how can it be a theory of our law? If law is a matter of social convention, how can there be conventions that hardly anybody knows about? How is a constitution in exile even possible?

This …

From Progressivism To Modern Liberalism: Louis D. Brandeis As A Transitional Figure In Constitutional Law, David E. Bernstein

Notre Dame Law Review

Part I of this Article discusses Brandeis’s many deviations from civil libertarianism as it came to be understood in the post–New Deal period. These deviations include his acquiescence to coercive eugenics, his general lack of interest in African American rights, his support for protective labor legislation for women and concomitant disregard for women’s legal equality, his toleration of government abuses attendant to Prohibition enforcement, and his desire to repeal the Fourteenth Amendment. Part II shows that despite these deviations, Brandeis had a significantly stronger record on civil liberties as a Supreme Court Justice than one would expect from someone of …

Intragenerational Constitutional Overruling, L.A. Powe Jr.

Notre Dame Law Review

This Article seeks to shed some light on a comparatively rare, but important issue in constitutional jurisprudence: Under what circumstances does the Supreme Court formally overrule one of its own significant constitutional precedents within the same judicial generation as the announcement of the precedent? This phenomenon is one part of the broader role of precedent and stare decisis in fashioning and maintaining constitutional law—albeit in part because of the modifier “significant”—there are a limited number of such cases (some three dozen where the overruled case was decided after the introduction of President Franklin Roosevelt’s Court-packing plan, roughly once every other …

The Jurisprudence Of The Hughes Court: The Recent Literature, Barry Cushman

Notre Dame Law Review

The balance of this Article is devoted, after a fashion, to an exploration of the extent to which the recent literature on the Hughes Court seeks to incorporate the internal point of view. In Part I, I seek to identify the historiographical premises undergirding each author’s treatment of the subject. In Part II, I explore how those historiographical premises are reflected in each author’s treatment of the substantive development of constitutional doctrine during the period. In Part III, I examine the ways in which those historiographical premises inform each author’s analysis of the causal forces driving that doctrinal development. Part …

The Former Clerks Who Nearly Killed Judicial Restraint, Brad Snyder

Notre Dame Law Review

This symposium piece explores the rise and fall of legal process theory as well as the scholarship of former Warren Court and early Burger Court clerks who nearly killed it. It also suggests that there could be a revival of a process-based judicial restraint based on a new generation of late Burger Court/early Rehnquist Court clerks-turned-academics who came of age during the mid-1980s. These law clerks rejected judicial supremacy and adopted popular constitutionalism and other democratic approaches to constitutional interpretation. Popular constitutionalism is inspired by the same faith in the democratic political process as the judicial restraint advocated by James …

Dropping The Ball: The Failure Of The Ncaa To Address Concussions In College Football, K. Adam Pretty

Notre Dame Law Review

Part I of this Note will examine the medical history of concussions, and the growing link between concussions suffered by football players and the development of long-term head injuries. Part II will discuss factors that exacerbate the concussion problem in football, as well as examine how the head injury issue is being addressed by the NCAA, the National Football League (NFL), and state legislatures. Part III will examine the NCAA’s duty to protect student-athlete safety in light of the ongoing litigation against the NCAA, specifically the potential scope of legal liability for head injuries. Part IV will focus on what …

Our Anchor For 225 Years And Counting: The Enduring Significance Of The Precise Text Of The Constitution, Brett M. Kavanaugh

Notre Dame Law Review

When one comes to Notre Dame, whether for a law review symposium or for a football game or for both, your mind is drawn to fundamentals and history. This is a place that oozes history, and in that vein, I want to take a step back and focus on the text of our Constitution. I want to focus on that text in two dimensions. First, I want to explain how the text of the Constitution creates a structure—a separation of powers—that protects liberty. And in particular, I want to emphasize how that structure tilts toward liberty, how it creates legislative …

The Decline Of Legal Classicism And The Evolution Of New Deal Constitutionalism, Samuel R. Olken

Notre Dame Law Review

This Article explores how some of the salient characteristics of classical legal thought influenced the evolution of the Supreme Court’s constitutional jurisprudence during the New Deal era. It focuses upon the Court’s jurisprudence of economic liberty in the context of substantive due process. Though a similar pattern of evolution occurred in the Court’s Commerce Clause jurisprudence, examination of this area of constitutional development is beyond the scope of this Article. Part I provides an overview of legal classicism and its influence upon late nineteenth and early twentieth-century constitutional law. The next Part examines the paradox of legal classicism and its …

The Paths To Griswold, Ryan C. Williams

Notre Dame Law Review

The goal of this Article is to develop a fuller picture of Griswold by situating the case within a series of doctrinal and jurisprudential debates and developments that were prominent at the time of the Court's decision but that have faded in significance over time. This alternative picture of Griswold shifts the focus away from viewing the case as one about birth control, sexual privacy, and women's autonomy and toward viewing the decision as one about interpretive method, constitutional theory, and the Supreme Court's role within the national political system. This alternative perspective on Griswold has by no means gone …

The Cost Of Judicial Error: Stare Decisis And The Role Of Normative Theory, Kurt T. Lash

Notre Dame Law Review

The Supreme Court of the United States has long embraced the doctrine of stare decisis as an appropriate consideration any time the Court considers overruling past precedent. However, because the Court's actual application of the doctrine has been both sporadic and seemingly inconsistent, some scholars (and Justices) have accused the Court of methodological hypocrisy and bad faith. Much of this criticism assumes that, if members of the Supreme Court find certain rule of law values dispositive in one case, they should find those same considerations dispositive in all cases. Failure to do so suggests either incompetence or insincerity. This Article …

Municipal Bankruptcy And Public Pensions: Detroit's Eligibility For Chapter 9 Relief And Legal Restraints On The City's Actions As A Debtor, Jackson T. Garvey

Notre Dame Law Review

This Note will seek to address the constitutional and statutory issues raised in the early stages of Detroit’s bankruptcy. Part I will briefly address how Detroit reached the point where municipal bankruptcy became legally possible and politically attractive. It will examine population trends in the city, changes in the character of Detroit’s major industries, and the deterioration of city services.

Part II will provide background information about the history of municipal bankruptcy in America and the constitutional challenges that it has faced. It will attempt to give a base from which to examine the major issues raised by Detroit’s case …

Suing Foreign Officials In U.S. Courts: Upholding Separation Of Powers By Limiting Judicial Abrogation Of Immunity, Sarah P. Hogarth

Notre Dame Law Review

This Note will propose the constitutional framework courts should implement when suits are brought against individual foreign officials post-Samantar, specifically arguing that the constitutional allocation of foreign affairs powers requires U.S. courts to broadly insulate foreign officials from suit absent authorization from a political branch. Part I examines the law of nations and its incorporation into the specific foreign relations powers delegated by the Constitution to the political branches, highlighting that the power to affect relations with foreign sovereigns resides in the political branches. Part II explains the Supreme Court’s development of foreign sovereign immunity and the act of state …

Our Men In Guadalajara And The Abduction Of Suspects Abroad: A Comment On United States V. Alvarez-Machain, John Quigley

Notre Dame Law Review

No abstract provided.

Resolving The Hate Crimes/Hate Speech Paradox: Punching Bias Crimes And Protecting Racist Speech, Frederick M. Lawrence

Notre Dame Law Review

No abstract provided.

Reformed Antitrust Approach To Distributor Terminations, Thomas A. Piraino Jr.

Notre Dame Law Review

No abstract provided.

Feduciary Duties Under The Commodity Exchange Act, Jerry W. Markham

Notre Dame Law Review

No abstract provided.

Why Have Chapter 11 Bankruptcies Failed So Miserably: A Reappraisal Of Congressional Attempts To Protect A Corporation's Net Operating Losses After Bankruptcy, Michelle M. Arnopol

Notre Dame Law Review

No abstract provided.

A Tribute To Judge Robert Allen Grant, Kenneth F. Ripple

Notre Dame Law Review

No abstract provided.

Remarks On The Dedication Of The Robing Room In Honor Of Judge Robert Allen Grant, Robert L. Miller Jr.

Notre Dame Law Review

No abstract provided.

Post-Lecture Discussion, Dayle E. Spencer

Notre Dame Law Review

No abstract provided.

Lessons From The Field Of Intra-National Conflict Resolution, Dayle E. Spencer, Honggang Yang

Notre Dame Law Review

No abstract provided.

Post-Lecture Discussion, Jorge S. Correa

Notre Dame Law Review

No abstract provided.