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Full-Text Articles in Law
The Double Standard For Third-Party Standing: June Medical And The Continuation Of Disparate Standing Doctrine, Brandon L. Winchel
The Double Standard For Third-Party Standing: June Medical And The Continuation Of Disparate Standing Doctrine, Brandon L. Winchel
Notre Dame Law Review
No jurisdictional principle is more fundamental to the federal judiciary than the doctrine of standing. Before litigants may avail themselves of the tremendous power vested in the federal judiciary, plaintiffs must first establish that they are appropriately situated to assert a legal claim before a court. In analyzing whether a plaintiff possesses the requisite standing to maintain a legal challenge, the Supreme Court has stressed that a court’s analysis must be blind to the underlying dispute: “The fundamental aspect of standing is that it focuses on the party seeking to get his complaint before a federal court and not on …
The Remand Power And The Supreme Court's Role, Aaron-Andrew P. Bruhl
The Remand Power And The Supreme Court's Role, Aaron-Andrew P. Bruhl
Notre Dame Law Review
“Reversed and remanded.” Or “vacated and remanded.” These familiar words, often found at the end of an appellate decision, emphasize that an appellate court’s conclusion that the lower court erred generally does not end the litigation. The power to remand for further proceedings rather than wrap up a case is useful for appellate courts because they may lack the institutional competence to bring the case to a final resolution (as when new factual findings are necessary) or lack an interest in the fact-specific work of applying a newly announced legal standard to the particular circumstances at hand. The modern Supreme …
The Meaning Of Federalism In A System Of Interstate Commerce: Free Trade Among The Several States, Donald J. Kochan
The Meaning Of Federalism In A System Of Interstate Commerce: Free Trade Among The Several States, Donald J. Kochan
Notre Dame Law Review Reflection
As states become dissatisfied with either the direction of federal policy or the
gridlock that seems like a barrier frustrating action, their disdain or impatience is
increasingly manifest in state legislative or regulatory efforts to reach big issues
normally reserved to federal resolution. Increasingly, such efforts to stake a position
on issues of national or international importance are testing the limits of state
autonomy within a system of federalism that includes robust protection for the free
flow of commerce among the several states.
This Essay provides the primary historical backdrop against which these
measures should be judged with a particular …
Reconsidering Wrongful Birth, Luke Isaac Haqq
Reconsidering Wrongful Birth, Luke Isaac Haqq
Notre Dame Law Review Reflection
The tort action for “wrongful birth” has a history dating back at least to the
1960s, when it emerged along with the claims for “wrongful life” and “wrongful
conception.” Since their incipience, this trio of lawsuits has generated an expansive
commentary, reaching into thousands of articles in the legal literature alone. With a
divide among federal circuits on wrongful birth only beginning to gain visibility with
Doherty v. Merck & Co. in 2018 and Zelt v. Xytex Corp. in 2019, the wrongful
birth claim could potentially provide a site for the Supreme Court to revisit national
abortion policy.
The …
A Workable Substantive Due Process, Timothy M. Tymkovich, Joshua Dos Santos, Joshua J. Craddock
A Workable Substantive Due Process, Timothy M. Tymkovich, Joshua Dos Santos, Joshua J. Craddock
Notre Dame Law Review
In this Article, we have three objectives. First, we’d like to add our own conceptualization of the various flavors of due process adjudication. Our aim here is not to add a new theory, but to explain what exists in new ways— to put all the pieces of the due process puzzle together and explain how they relate to each other. To the surprise of some, perhaps, we find a small kernel of originalist truth within current forms of substantive due process. In short, the “shocks the conscience” strand of substantive due process jurisprudence prohibits some egregious torts by the state. …
The Great Writ And Federal Courts: Judge Wood's Solution In Search Of A Problem, William H. Pryor Jr.
The Great Writ And Federal Courts: Judge Wood's Solution In Search Of A Problem, William H. Pryor Jr.
Notre Dame Law Review
Judge Diane Wood provides, in her characteristically efficient prose, a thoughtful overview of the history of the Great Writ in service of a thesis that her essay otherwise fails to support. Judge Wood invokes Judge Henry Friendly’s classic article, Is Innocence Irrelevant? Collateral Attack on Criminal Judgments, to suggest that the writ of habeas corpus should be expanded to allow federal courts to review the petitions of state prisoners who allege their actual innocence without otherwise identifying any violation of federal law in securing their convictions. But that thesis cannot be squared with the proposal Judge Friendly championed in …
Certification Comes Of Age: Reflections On The Past, Present, And Future Of Cooperative Judicial Federalism, Kenneth F. Ripple, Kari Anne Gallagher
Certification Comes Of Age: Reflections On The Past, Present, And Future Of Cooperative Judicial Federalism, Kenneth F. Ripple, Kari Anne Gallagher
Notre Dame Law Review
In 1995, the American Judicature Society (AJS) undertook a comprehensive survey of certification. This Article uses the AJS’s survey as a starting point to examine the development of certification over the past twenty-five years. Were the fears of its critics well founded, or have the federal and state judiciaries adapted to mitigate the shortcomings of certification? Has certification been a useful tool in allowing for development of state law by the state judiciary, or has it been an imposition on the judiciary of a coequal sovereign?
Beyond these questions, this Article also will look at how certification has expanded beyond …
A Survivor's Perspective: Federal Judicial Selection From George Bush To Donald Trump, Leslie H. Southwick
A Survivor's Perspective: Federal Judicial Selection From George Bush To Donald Trump, Leslie H. Southwick
Notre Dame Law Review
Over recent decades, federal judicial selection controversies are worsening in their frequency and intensity. They distort all three branches of government. My particular concern is with federal judicial selection for judgeships below the Olympian heights of those on the United States Supreme Court, namely, the judges on the twelve regional circuit courts of appeals and the ninety-four district courts.
The depth of partisan acrimony over judicial confirmations has placed us in the infernal regions, and we seem to be continuing our descent. Analyzing how we got there is invariably affected by the biases, or more gently, by the perspectives of …
Toward A More Apparent Approach To Considering The Admission Of Expert Testimony, Thomas D. Schroeder
Toward A More Apparent Approach To Considering The Admission Of Expert Testimony, Thomas D. Schroeder
Notre Dame Law Review
This Article highlights lingering confusion in the caselaw as to the proper standard for the trial court’s discharge of its gatekeeping role for the admission of expert testimony. The Article urges correction of the faulty application of Daubert’s admonition as to “shaky but admissible” evidence as a substitute for proper discharge of the trial court’s gatekeeper function under Rule 104(a). The Article concludes with several suggestions for trial and appellate courts to consider for better decisionmaking in discharging their duty to apply Rule 104(a)’s preponderance standard to the elements of Rule 702.
Only Where Justified: Toward Limits And Explanatory Requirements For Nationwide Injunctions, Milan D. Smith Jr.
Only Where Justified: Toward Limits And Explanatory Requirements For Nationwide Injunctions, Milan D. Smith Jr.
Notre Dame Law Review
In Part I of this Article, I discuss the existing law and current debates surrounding nationwide injunctions. I consider the origins of both the apparent recent surge in the issuance of nationwide injunctions and the apparent recent surge in skepticism concerning nationwide injunctions. In Part II, I analyze the potential justification for issuance of a nationwide injunction that I find most compelling, and on which basis I argue a court is well within the bounds of Article III notwithstanding the indirect benefits of such injunction to nonparties. In Part III, I consider three other sometimesasserted justifications that I argue courts …
Stare Decisis And The Supreme Court(S): What States Can Learn From Gamble, Zachary B. Pohlman
Stare Decisis And The Supreme Court(S): What States Can Learn From Gamble, Zachary B. Pohlman
Notre Dame Law Review
While almost all questions before the Supreme Court require statutory or constitutional interpretation, state courts of last resort occupy a unique place in the American judicial landscape. As common-law courts, state supreme courts are empowered to develop common-law doctrines in addition to interpreting democratically enacted texts. This Note argues that these two distinct state court functions—interpretation of statutes and constitutions, and common-law judging—call for two distinct approaches to stare decisis, a distinction that is often muddied in practice. Justice Thomas’s concurrence in Gamble v. United States provides the framework for each approach, a framework based on the genesis and development …
Into The Weeds: Modern Discrimination Law, Sandra F. Sperino
Into The Weeds: Modern Discrimination Law, Sandra F. Sperino
Notre Dame Law Review
Since the 1970s, the federal courts have created a number of frameworks to analyze discrimination claims. Each framework provides a roadmap for proving a certain theory of discrimination. Over time, the courts have added bells and whistles to these basic roadmaps. These court-created ancillary doctrines or subdoctrines require an ever-increasing amount of judicial attention.
While legal scholars have challenged the ancillary doctrines individually, this Article examines them collectively. When viewed collectively, it is easier to see how the system of creating and using ancillary doctrines is significantly flawed. Any benefits that derive from it are outweighed by its problems.
This …
Are Collateral Consequences Deserved?, Brian M. Murray
Are Collateral Consequences Deserved?, Brian M. Murray
Notre Dame Law Review
While bipartisan passage of the First Step Act and state reforms like it will lead to changes in sentencing and release practices, they do little to combat the collateral consequences that exoffenders face upon release. Because collateral consequences involve the state’s infliction of serious harm on those who have been convicted or simply arrested, their existence requires justification. Many scholars classify them as punishment, but modern courts generally diverge, deferring to legislative labels that classify them as civil, regulatory measures. This label avoids having to address existing constitutional and legal constraints on punishment. This Article argues that although collateral consequences …
Fiduciary Injury And Citizen Enforcement Of The Emoluments Clause, Meredith M. Render
Fiduciary Injury And Citizen Enforcement Of The Emoluments Clause, Meredith M. Render
Notre Dame Law Review
The text of the Emoluments Clause provides no explicit enforcement mechanism, raising questions about who may enforce the Clause, and the mechanism by which it might be enforced. Is the Clause enforceable exclusively by collective action—such as an impeachment proceeding by Congress—or is it also enforceable by individual action—such as a private lawsuit? If the Emoluments Clause can be enforced by private action, who has standing to sue? In the absence of explicit textual guidance, a broader constitutional theory is required to render enforcement of the Clause coherent.
This Article presents that broader theory. The Article argues that the Emoluments …
The Judicial Reforms Of 1937, Barry Cushman
The Judicial Reforms Of 1937, Barry Cushman
Journal Articles
The literature on reform of the federal courts in 1937 understandably focuses on the history and consequences of President Franklin D. Roosevelt’s ill-fated proposal to increase the membership of the Supreme Court. A series of decisions declaring various components of the New Deal unconstitutional had persuaded Roosevelt and some of his advisors that the best way out of the impasse was to enlarge the number of justiceships and to appoint to the new positions jurists who would be “dependable” supporters of the Administration’s program. Yet Roosevelt and congressional Democrats also were deeply troubled by what they perceived as judicial obstruction …