Law Commons^™

Does The Discourse On 303 Creative Portend A Standing Realignment?, Richard M. Re

Notre Dame Law Review Reflection

Perhaps the most surprising feature of the last Supreme Court Term was the extraordinary public discourse on 303 Creative LLC v. Elenis. According to many commentators, the Court decided what was really a “fake” or “made-up” case brought by someone who asserted standing merely because “she worries.” As a doctrinal matter, these criticisms are unfounded. But what makes this episode interesting is that the criticisms came from the legal Left, which has long been associated with expansive principles of standing. Doubts about standing in 303 Creative may therefore portend a broader standing realignment, in which liberal Justices become jurisdictionally hawkish. …

Emergency-Docket Experiments, Edward L. Pickup, Hannah L. Templin

Notre Dame Law Review Reflection

This short Essay is the first to analyze the Court’s recent emer-gency-docket experiments and discuss their effectiveness. We conclude that the Court’s interventions have real benefits: giving emergency cases greater procedure improves transparency, boosts public confidence in the Court, and gives guidance to litigants and lower courts.

But experiments are often iterative—it is unusual to hit the right result the first time. So too with the Court’s emergency-docket tinkering. In tweaking its stay factors, the Justices have failed to give suffi-cient guidance to litigants about how those factors will apply in the future. Plus, in transferring Ramirez from the emergency …

Federal Judicial Power And Federal Equity Without Federal Equity Powers, John Harrison

Notre Dame Law Review

This Article discusses the ways in which the federal courts do and do not have equity powers. Article III courts have the judicial power, which enables them to apply the law, primary and remedial. Applicable remedial law often includes the law of equitable remedies, so the federal courts have the power and obligation to give remedies pursuant to equitable principles. The law of equitable remedies, written and unwritten, is external to the courts, not created by them, the same way written law is external to the courts. Because the unwritten law of equitable remedies is found largely in judicial practice, …

A Responsive Remedy For Unconstitutional Removal Restrictions, William C. Eisenhauer

Notre Dame Law Review

The Supreme Court has inconsistently approached the remedies in unlawful removal restriction cases. This inconsistency fails to redress plaintiffs injured by unlawful executive power, blurs the separation of powers, and discourages other constitutional actors from considering their actions’ implications.3 This Note proposes a straight-forward solution to those problems.

It begins in Part I by laying out the mechanics of appointment and removal, with special attention to the constitutional and precedential intricacies of the removal power. Part II introduces the remedial problem by describing the Supreme Court’s two most recent removal cases and identifying the problematic inconsistencies. Part III dis-cusses in …

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 …

King V. Burwell: The Supreme Court's Missed Opportunity To Cure What Ails Chevron, Vanessa L. Johnson, Marisa Finley, J. James Rohack

Journal of Legislation

The article outlines the construct of the ACA’s premium assistance tax credits, explores the legal controversies surrounding these subsidies, uses the tax subsidies cases to demonstrate the flaws in the Chevron framework, and argues that the Supreme Court should have framed its King v. Burwell analysis in a way that would have cured, rather than ignored, the ails of Chevron.

Chaidez V. United States - You Can't Go Home Again, Aram A. Gavoor, Justin M. Orlosky

Notre Dame Journal of Law, Ethics & Public Policy

This article examines a 2013 Supreme Court decision, Chaidez v. United States, in which the Court declined to apply retroactively another recent decision, Padilla v. Kentucky. To many observers, Chaidez appears to be a discrete departure from previous Sixth Amendment right to counsel jurisprudence. On a personal level, noncitizens who pled guilty to a crime without being apprised of the plea’s removal risks are now unable to seek redress under Padilla and return to their homes in the United States. This article examines relevant Sixth Amendment and retroactivity jurisprudence and proposes an explanation for the Court’s apparent aboutface.