Law Commons^™

Supreme Court Cases 2013–14 Term, Barbara Fick

Books

This is section 6 from a symposium called "Recent Developments in Employment Law" hosted by the Indiana Continuing Legal Education Forum, December 16, 2014.

Ndls Update 12/09/2014, Notre Dame Law School

NDLS Update

NDLS Update is a weekly email newsletter of news, events, and opportunities for Law School faculty and staff.

Ndls Update 12/02/2014, Notre Dame Law School

NDLS Update

NDLS Update is a weekly email newsletter of news, events, and opportunities for Law School faculty and staff.

Yesterday, we said a final farewell to our colleague, mentor, teacher, and friend Robert E. Rodes, Jr.

Quasi-Inquisitorialism: Accounting For Deference In Pretrial Criminal Procedure, Jennifer E. Laurin

Notre Dame Law Review

Police and prosecutorial activities that take place long before a criminal trial are frequently critical to, even dispositive of, the accuracy and reliability of case disposition. At the same time, the regulatory touch of constitutional criminal procedure in the pretrial realm is insistently light. Proposals to address actual or risked deficiencies in this arena have proliferated in recent years, exemplified by pushes for social-science-rooted investigative best practices, for broader defense access to evidence prior to trial, for more oversight in plea bargaining, and so on. But in the face of these critiques, broad pretrial discretion largely reigns.

A prevailing explanation …

Widening The Lane: An Argument For Broader Interpretation Of Permissible Uses Under The Driver's Privacy Protection Act, Candace D. Berg

Notre Dame Law Review

This Note argues that the recent judicial interpretations of the DPPA by the Supreme Court and the Seventh Circuit have improperly limited the scope of permissible uses. The imposition of reasonableness limitations on disclosure, and the judicial analysis of disclosure to determine the exclusive predominant purpose, were novel judicial interpretations of a longstanding and established statute. Courts’ narrow interpretations of the permissible uses of the DPPA are contrary to the text of the statute and do not advance the statute’s central goals. The courts’ approaches are also likely to have significant practical effect contrary to general policy aims. Such changes …

The Vonage Trilogy: A Case Study In "Patent Bullying", Ted Sichelman

Notre Dame Law Review

This Article presents an in-depth case study of a series of infringement suits filed by “patent bullies.” Unlike the oft-discussed “patent trolls”—which typically sell no products or services and perform no R&D—patent bullies are large, established operating companies that threaten or institute costly patent infringement actions of dubious merit against smaller companies, usually in order to suppress competition or garner licensing fees. In an ideal world of high-quality patents and optimal patent licensing and litigation, infringement suits by aggressive incumbents would have a cleansing, almost Darwinian effect. Yet, defects and distortions in patent examination, licensing, and litigation—the very problems that …

The Curious Incident Of The Supreme Court In Myriad Genetics, Dan L. Burk

Notre Dame Law Review

Often what is not said is as significant as what is said. In its recent Myriad Genetics decision, the United States Supreme Court is curiously silent about the relationship between its holding in that case and the holding in its immediately previous patent subject matter case, Mayo v. Prometheus. This reticence is all the more puzzling given that the Court initially remanded Myriad to the lower courts for reconsideration in light of the Mayo holding. The Court’s silence regarding Mayo leaves uncertain the relationship between the “products of nature” doctrine that serves as the basis for the Myriad decision, and …

Immigration Separation Of Powers And The President's Power To Preempt, Catherine Y. Kim

Notre Dame Law Review

This Article explores the unique separation of powers issues raised in the immigration context, focusing on the respective powers of Congress and the President to preempt state law. Pursuant to traditional understanding, Congress and only Congress is constitutionally vested with the authority to displace conflicting state laws. Outside of the immigration context, the Supreme Court nonetheless has invoked competing theories of executive power to justify extending preemptive effect to administrative decisions. At the same time, however, it has imposed significant doctrinal restrictions on its exercise. In its recent decision in Arizona v. United States, the Court departed from these existing …

Judge Posner, Judge Wilkinson, And Judicial Critique Of Constitutional Theory, Marc O. Degirolami, Kevin C. Walsh

Notre Dame Law Review

Judge Richard Posner’s well-known view is that constitutional theory is useless. And Judge J. Harvie Wilkinson III has lambasted constitutional theory for the way in which its “cosmic” aspirations threaten democratic self-governance. Many other judges hold similar views. And yet both Posner and Wilkinson—in the popular press, in law review articles, and in books—have advocated what appear to be their own theories of how to judge in constitutional cases. Judicial pragmatism for Posner and judicial restraint for Wilkinson seem to be substitutes for originalism, living constitutionalism, political process theory, and so on. But both Posner and Wilkinson also deny that …

Against Coherence In Statutory Interpretation, John David Ohlendorf

Notre Dame Law Review

A long tradition in legal theory views the judicial role as centrally including the duty to make the entire body of law “speak with one voice.” This coherence ideal permeates much of the law of statutory interpretation, but one body of doctrine that it has particularly influenced is the set of standards that federal courts use to determine when a newly enacted statute overrides preexisting legal rules. Determining whether Congress implicitly intends to preempt state law, repeal previous legislation, or displace federal common law is an increasingly important part of the “ordinary diet of the law.” And although, this Article …

Seeking Common Ground In The Abortion Regulation Debate, Jessica Arden Ettinger

Notre Dame Law Review

This Note argues that requiring abortion clinics to adhere to the same standards as ambulatory surgical centers is unconstitutional, at least in the context of those clinics that provide only medication abortion, because it unduly burdens a woman’s right to choose whether to obtain an abortion. Although there may be a rational basis to require abortion clinics offering surgical abortion procedures to meet surgical facility standards, no such basis attends the imposition of those requirements on clinics that provide nonsurgical services. Given the number of clinics that continue to close in the face of this new regulatory legislation—which significantly reduces …

Respecting Legislators And Rejecting Baselines: Rebalancing Casey, Paul C. Quast

Notre Dame Law Review

Part I of this Note describes the background cases leading to the Supreme Court’s decision in Casey and the resulting undue burden standard. This Part also explains the limited circumstances in which the undue burden standard gives more definitive guidelines for judicial decisionmaking. Part II works through several federal district and appellate court cases to identify some of the underlying baseline presumptions and normative value judgments influencing judicial decisions in this area of the law. These baselines are often dispositive in determining whether a restriction on abortion is due or undue, cutting against the goodwill attempts by legislatures to make …

Compliance With Most Favored Customer Clauses: Giving Meaning To Ambiguous Terms While Avoiding False Claims Act Allegations, Mitchell S. Ettinger, James C. Altman

Notre Dame Law Review Reflection

Federal and state contracting authorities more frequently are including Most Favored Customer (MFC) clauses in contracts for procurement of privately manufactured products. These clauses seek to ensure that the contracting authority (typically a federal or state agency) receives at least as favorable pricing as other customers making similar purchases. For example, the government agency may request that the contractor warrant that the prices it charges under the contract will be as favorable as those offered to other parties purchasing similar products of similar quantity under similar terms and conditions. In theory, the request to be treated equally to others making …

Mccutcheon V. Federal Election Commission, Stephen M. Degenaro

Notre Dame Law Review Reflection

McCutcheon v. Federal Election Commission involved a challenge to limits imposed on the amount a donor may contribute during a single election cycle. In McCutcheon, the Court was presented with the question of whether the aggregate limits placed on contributions to candidate and noncandidate committees either lacked a cognizable constitutional interest or were unconstitutionally too low. In a five to four decision, the Supreme Court held that the aggregate limits on campaign contributions burden substantial First Amendment rights without furthering a permissible government interest.

Lane V. Franks, Katie Jo Baumgardner

Notre Dame Law Review Reflection

On June 19, 2014, the U.S. Supreme Court expanded the scope of public employee free speech with its decision in Lane v. Franks. The Court granted certiorari in order “to resolve discord among the Courts of Appeals as to whether public employees may be fired—or suffer other adverse employment consequences—for providing truthful subpoenaed testimony outside the course of their ordinary job responsibilities.” The unanimous Lane decision, which affirmed in part and reversed in part an opinion by the Eleventh Circuit, held that the First Amendment protects a public employee from retaliatory employer discipline where the employee testifies at trial, pursuant …

Quasi-Rights For Quasi-Religious Organizations: A New Framework Resolving The Religious-Secular Dichotomy After Burwell V. Hobby Lobby, Krista M. Pikus

Notre Dame Law Review Reflection

This Comment aims to break free of the limiting religious-secular dichotomy by proposing a “quasi-religious” classification in order to achieve a more nuanced assignment of corporate religious exercise rights. Part I addresses the current legal standard for classifying organizations as religious and how the Hobby Lobby decision engaged that standard. Part II identifies and discusses the problems with the religious-secular dichotomy. Lastly, Part III proposes a new solution to the problem of corporate religious exercise rights that transcends the limitations of the religious-secular dichotomy and may also bring clarity to the Hobby Lobby decision.

The Rule Of Law As A Law Of Law, Steven G. Calabresi, Gary Lawson

Notre Dame Law Review

Justice Scalia is famous for his strong rule orientation, best articulated in his 1989 article, The Rule of Law as a Law of Rules. In this Article, we explore the extent to which that rule orientation in the context of constitutional interpretation is consistent with the Constitution’s original meaning. We conclude that it is far less consistent with the Constitution than is generally recognized. The use of standards rather than rules is prescribed not only by a few provisions in the Bill of Rights and the Fourteenth Amendment but also by key aspects of the 1788 constitutional text. The executive …

Constitutional Limits On Surveillance: Associational Freedom In The Age Of Data Hoarding, Deven R. Desai

Notre Dame Law Review

Protecting associational freedom is a core, independent yet unappreciated part of the Fourth Amendment. New surveillance techniques threaten that freedom. Surveillance is no longer primarily forward looking. Today, changing technology allows law enforcement and intelligence services to obtain the same, if not more, information about all of us by looking backward. This shift massively expands the government’s ability to examine, investigate, and deter exercise of the freedom of association.

Forward-looking surveillance has limits that don’t apply to backward-looking surveillance. Some limits are practical such as the cost to place a person in a car to follow a suspect. Some are …

Mmu: 11/24/14–11/30/14, Student Bar Association

Monday Morning Update

The Monday Morning Update, or MMU as it is referred to by students, is a weekly email newsletter of news, events, and opportunities of special interest to Notre Dame Law School students.

Ndls Update 11/18/2014, Notre Dame Law School

NDLS Update

NDLS Update is a weekly email newsletter of news, events, and opportunities for Law School faculty and staff.

Mmu: 11/17/14–11/23/14, Student Bar Association

Monday Morning Update

The Monday Morning Update, or MMU as it is referred to by students, is a weekly email newsletter of news, events, and opportunities of special interest to Notre Dame Law School students.

Freedom, Benefit And Understanding: Reflections On Laurence Claus's Critique Of Authority, John Finnis

Journal Articles

Written for a symposium in the University of San Diego Law School in September 2013 on Laurence Claus, Law’s Evolution and Human Understanding (New York: Oxford University Press, 2012), this article appears in the final issue of volume 52 of the San Diego Law Review. With new illustrations and considerations suggested by the book, the article argues for a number of theses: “Because I/we say so” is never a reasonable ground or formulation of authoritative acts such as enactments or parental or other orders. The moral authority of rule makers is never peremptory in a binary (all or nothing) as …

Ndls Update 11/11/2014, Notre Dame Law School

NDLS Update

NDLS Update is a weekly email newsletter of news, events, and opportunities for Law School faculty and staff.

Mmu; 11/10/14–11/16/14, Student Bar Association

Monday Morning Update

The Monday Morning Update, or MMU as it is referred to by students, is a weekly email newsletter of news, events, and opportunities of special interest to Notre Dame Law School students.

Mlb Calendar 2014-2015, Edmund P. Edmonds

MLB Calendars

No abstract provided.

Mmu: 11/03/14–11/09/14, Student Bar Association

Monday Morning Update

The Monday Morning Update, or MMU as it is referred to by students, is a weekly email newsletter of news, events, and opportunities of special interest to Notre Dame Law School students.

Yates V. United States: A Case Study In Overcriminalization, Stephen F. Smith

Journal Articles

In Yates v. United States, the Supreme Court will decide whether tossing undersized fish overboard can be prosecuted under the Sarbanes–Oxley Act of 2002, a law aimed at preventing massive frauds of the sort that led to the collapse of Enron and sent shock waves throughout the economy. Although the legal issue is narrow, the case has far-reaching significance. The Yates prosecution is a case study in the dangers posed by “overcriminalization”: the existence of multitudinous, often overlapping criminal laws that are so poorly defined that they sweep within their ambit conduct far afield from their intended target.

The …

The Governance Structure Of Shadow Banking: Rethinking Assumptions About Limited Liability, Steven L. Schwarcz

Notre Dame Law Review

In an earlier article, I argued that shadow banking—the provision of financial services and products outside of the traditional banking system, and thus without the need for bank intermediation between capital markets and the users of funds—is so radically transforming finance that regulatory scholars need to rethink their basic assumptions. This Article attempts to rethink the corporate governance assumption that owners of firms should always have their liability limited to the capital they have invested. In the relatively small and decentralized firms that dominate shadow banking, equity investors tend to be active managers. Limited liability gives these investor-managers strong incentives …

The Equitable Anti-Injunction Act, Erin Morrow Hawley

Notre Dame Law Review

The Anti-Injunction Act of 1867 (AIA or the Act) has never been more important. Originally enacted to expedite the collection of revenue-raising taxes, courts and scholars have for years assumed that the statute imposes a jurisdictional bar on any pre-enforcement challenge to a tax. On this interpretation, taxpayers subject to an invalid tax have two choices only: comply or pay the tax and pursue a refund. Read this way, the Act is a marked departure from the general rule that pre-enforcement challenges are permissible so long as justiciability requirements are met. And it imposes a marked burden on aggrieved taxpayers …

Mirrored Externalities, Lisa Grow Sun, Brigham Daniels

Notre Dame Law Review

A fundamental but underappreciated truth is that positive and negative externalities are actually mirror reflections of each other. What we call “mirrored externalities” exist because any action with externalities associated with it can be described as a choice to do or to refrain from doing that particular action. For example, if a person smokes and thereby creates a negative externality of more secondhand smoke, then her choice not to smoke creates a positive externality of less secondhand smoke. Conversely, if a person’s choice to get an immunization confers a positive externality of reducing vectors for disease transmission, then a choice …