Jurisprudence Commons^™

Interpreting State Statutes In Federal Court, Aaron-Andrew P. Bruhl

Notre Dame Law Review

This Article addresses a problem that potentially arises whenever a federal court encounters a state statute. When interpreting the state statute, should the federal court use the state’s methods of statutory interpretation—the state’s canons of construction, its rules about the use of legislative history, and the like—or should the court instead use federal methods of statutory interpretation? The question is interesting as a matter of theory, and it is practically significant because different jurisdictions have somewhat different interpretive approaches. In addressing itself to this problem, the Article makes two contributions. First, it shows, as a normative matter, that federal courts …

The Moral Authority Of Original Meaning, J. Joel Alicea

Notre Dame Law Review

One of the most enduring criticisms of originalism is that it lacks a sufficiently compelling moral justification. Scholars operating within the natural law tradition have been among the foremost critics of originalism’s morality, yet originalists have yet to offer a sufficient defense of originalism from within the natural law tradition that demonstrates that these critics are mistaken. That task has become more urgent in recent years due to Adrian Vermeule’s critique of originalism from within the natural law tradition, which has received greater attention than previous critiques. This Article is the first full-length response to the natural law critique of …

Interring The Unitary Executive, Christine Kexel Chabot

Notre Dame Law Review

The President’s power to remove and control subordinate executive officers has sparked a constitutional debate that began in 1789 and rages on today. Leading originalists claim that the Constitution created a “unitary executive” President whose plenary removal power affords her “exclusive control” over subordinates’ exercise of executive power. Text assigning the President a removal power and exclusive control appears nowhere in the Constitution, however, and unitary scholars have instead relied on select historical understandings and negative inferences drawn from a supposed lack of independent regulatory structures at the Founding. The comprehensive historical record introduced by this Article lays this debate …

"A Sword In The Bed": Bringing An End To The Fusion Of Law And Equity, Brooks M. Chupp

Notre Dame Law Review

Those who called for the fusion of law and equity have, throughout the years, argued that the existence of a parallel court system for equity would be inefficient and confusing for parties. While there is limited merit to this viewpoint, the United States has been willing to create courts of limited jurisdiction to hear cases of a highly specialized or technical nature in other areas of the law (for example, tax and bankruptcy). This Note argues that the specialized-courts approach is viable as it relates to equity and that it is, in fact, preferable to the current system. This Note …

Recovering Classical Legal Constitutionalism: A Critique Of Professor Vermeule's New Theory, Jeffrey A. Pojanowski, Kevin C. Walsh

Notre Dame Law Review

This Review proceeds in three Parts. Part I briefly summarizes Common Good Constitutionalism and provides a more detailed description of four of the book’s distinctive features. Part II critiques Vermeule’s argument in light of the classical tradition’s four essential aspects of law, namely that it is an ordinance of reason, for the common good, made by one who has care of the community, and promulgated. Part III draws on those reflections to respond to Vermeule’s criticisms of work like ours that argues that original-law-based understandings of the Constitution are at home in the classical legal tradition. A Conclusion briefly reflects …

"Grievously And Egregiously Wrong": American Abortion Jurisprudence, Alyson M. Cox, O. Carter Snead

Journal Articles

This paper considers American abortion jurisprudence in the light of the Supreme Court's grant of certiorari in Dobbs v. Jackson Women's Health Organization. We conclude that Casey and its precedent case of Roe are egregiously wrong, have no grounding in the Constitution, and are unjustifiable on stare decisis grounds. This article argues that the Court should take this opportunity to overturn Roe and Casey once and for all, and restore to the political branches of government the authority to enact laws and policies that offer comprehensive protections to mothers, children (born and unborn), and families. Just as both parties made …

The Internal Point Of View In Private Law, Paul B. Miller, Jeffrey A. Pojanowski

Journal Articles

Many leading private law theorists claim to analyze private law from an internal point of view; a vantage point within which private law doctrine, institutions and procedure enjoy pride of place. Private law theory of a generation ago distinguished the internal from external points of view, valorizing the former and criticizing the latter for ignoring the normativity of private law or for mistaking private law for public law or regulation. The New Private Law, by contrast, asserts the complementarity of internal and external points of view, partly by emphasizing the value of functionalist analyses of legal form. In this article, …

Brief Of Amicus Curiae Ethics And Public Policy Center In Support Of Petitioners And Reversal, Richard W. Garnett, Charles J. Cooper, Peter A. Patterson, Brian W. Barnes, John D. Ohlendorf

Court Briefs

No. 19-1392
Thomas E. Dobbs v. Jackson Women's Health Organization

On Writ of Certiorari to the United States Court of Appeals for the Fifth Circuit

From the Introduction and Summary of the Argument

By the narrowest of margins, this Court in Planned Parenthood v. Casey, 505 U.S. 833 (1992), refused to overrule Roe—not because it thought Roe was correct, but because it thought Roe must endure as a matter of stare decisis. But 30 years later it has become clear that Casey, too, was egregiously wrong, for each one of the stare decisis factors cited by …

Brief For Professors Mary Ann Glendon And O. Carter Snead As Amici Curiae In Support Of Petitioners, Heather Gebelin Hacker, O. Carter Snead

Court Briefs

No. 19-1392
Thomas E. Dobbs v. Jackson Women's Health Organization

On Writ of Certiorari to the United States Court of Appeals for the Fifth Circuit

From the Summary of Argument

Mississippi’s 2018 Gestational Age Act, which prohibits abortions after 15 weeks gestational development (with exceptions for medical emergency or fetal abnormality) is quite modest in impact, more permissive than the vast majority of the laws on abortion around the world (including in all but three European nations), and appears to be broadly popular. But it seems to clearly violate the Supreme Court-made law of abortion, which forbids the State from …

The Morality Of Fiduciary Law, Paul B. Miller

Journal Articles

Recent work of fiduciary theory has provided conceptual synthesis requisite to understanding core fiduciary principles and the structure of fiduciary liability. However, normative questions have received only sporadic attention. What values animate fiduciary law? How does, or ought, fiduciary law prove responsive to them?

Where in other areas of private law theory – notably, tort theory – pioneering scholars went directly at normative questions like these, fiduciary theory has been exceptional for the reticence shown toward them. The reticence is sensible. Fiduciary principles are the product of equity’s most extended and convoluted program of supplementing surrounding law. They span several …

Dissenting From The Bench, Christine M. Venter

Journal Articles

This paper examines the oral dissents of Justices Antonin Scalia and Ruth Bader Ginsburg from the year 2000 to the times of their respective deaths. It explores the concept and purpose of oral dissent and details the kinds of cases in which each justice was more likely to orally dissent. The paper analyzes the kinds of rhetoric that each justice used to refer to their subject matter, and argues that Scalia's rhetoric evinces a view of the law as "autonomous", operating independently of the facts of the case. In contrast, Ginsburg's view espouses a view of the law as responsive …

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 …

Untangling Entanglement, Stephanie H. Barclay

Journal Articles

The Court has increasingly signaled its interest in taking a more historical approach to the Establishment Clause. And in its recent American Legion decision, the Supreme Court strongly suggested that the three-prong Lemon test is essentially dead letter. Such a result would make sense for the first two prongs of the Lemon test about secular purpose and the effects. Many scholars have observed that these aspects of the prong are judicial creations far afield of the Establishment Clause history. But what of the entanglement prong of the test? If we rejected all applications of this prong of the analysis, would …

Setting Our Feet: The Foundations Of Religious And Conscience Protections, Hanna Torline

Notre Dame Law Review

This Note does not attempt to claim that religion and conscience are not moral equivalents, that they are not equally important, or that they do not require equal legal treatment. Nor does it attempt to claim the converse. Simply put, it argues that a consideration of the different foundations underlying conscience protections and religious protections should give pause to anyone arguing that the two are equivalent. This Note concludes that the rationales behind protecting religion and conscience are different enough to merit consideration in the debate. For if religion and conscience are treated as equivalents under the law, they will …

Restoring Effective Congressional Oversight: Reform Proposals For The Enforcement Of Congressional Subpoenas, Kia Rahnama

Journal of Legislation

This Article proposes possible legislative reforms to Congress’s exercise of its contempt power in combating non-compliance with subpoenas duly issued as part of congressional investigations. With the recent trends in leveraging congressional investigations as an effective tool of separation of powers, this Article seeks to explore the exact bounds of congressional power in responding to executive officers’ noncompliance with congressional subpoenas, and whether or not current practice could be expanded beyond what has historically been tried by the legislative branch. This Article provides a brief summary of the historic practice behind different options for responding to non-compliance with subpoenas (inherent …

Considering The Costs: Adopting A Judicial Test For The Least Restrictive Environment Mandate Of The Individuals With Disabilities Education Act, Edmund J. Rooney

Journal of Legislation

No abstract provided.

Transborder Speech, Ronald J. Krotoszynski Jr.

Notre Dame Law Review

In an increasingly globalized marketplace of ideas, First Amendment law and theory must recognize that the freedom of speech does not end at the water’s edge. Simply put, the locus of expressive activity should not prefigure the government’s ability to engage in censorship. Nevertheless, under current First Amendment law and practice, the accident of geography may serve as a constitutionally acceptable basis for content-based censorship of speech. If, as the Supreme Court argued with such ferocity in Citizens United, the value of speech to an audience does not depend on the speaker’s identity or motive for speaking, then by …

Teaching Jurisprudence In A Catholic Law School, Jeffrey A. Pojanowski

Journal Articles

This essay is a contribution to a symposium on John Breen and Lee Strang's forthcoming book, A Light Unseen: A History of Catholic Legal Education in the United States. Breen and Strang's book offers not just a history, but a program for the future of Catholic legal education. Their program places the teaching of jurisprudence and the natural law tradition at the center of Catholic legal education. This essay draws on lessons from teaching jurisprudence at Notre Dame Law School which, in delightfully countercultural fashion, is one of the few remaining law schools in the nation that require jurisprudence. It …

Collusion, Obstruction Of Justice, And Impeachment, Ediberto Roman, Melissa Gonzalez, Dianet Torres

Journal of Legislation

No abstract provided.

Precedent In A Polarized Era, Zachary S. Price

Notre Dame Law Review

My Review begins below in Part I with a brief synopsis of Professor Kozel’s argument. Part II then discusses his theory’s particular value, and challenges, in our historical moment of acute polarization and political conflict over constitutional law. To make Part II’s claims more concrete, Part III then turns to Janus and Wayfair. It uses the two cases to illustrate pressures courts may face in the years ahead and assesses how well these decisions accord with Kozel’s theory. The Review ends with a conclusion reflecting more broadly on the importance of stare decisis and other institutional restraints in the current …

Revisiting Roe To Advance Reproductive Justice For Childbearing Women, Elizabeth Kukura

Notre Dame Law Review Reflection

The rewritten opinions that comprise Feminist Judgments together provide a powerful critique of judicial decisionmaking that renders certain women’s experiences invisible. By reimagining key Supreme Court decisions, the opinion writers unmask various ways that gendered conceptions of social roles are deeply entrenched in the rulings and reasoning of the highest court of the United States. The authors also show, through their alternative texts, that opinions which are celebrated as women’s rights victories can nevertheless impede progress toward equality and liberty.

Kimberly Mutcherson’s rewritten concurrence in Roe v. Wade illustrates the missed opportunities and unintended consequences that have made the landmark …

The Love In Loving: Overcoming Artificial Racial Barriers, Justice Leah Ward Sears (Ret.), Sasha N. Greenberg

Notre Dame Law Review Reflection

The rewritten opinion of Loving v. Virginia in Feminist Judgments: Rewritten Opinions of the United States Supreme Court is in stark contrast to the original. Professor Teri McMurtry-Chubb’s judgment for the court “unmasks—and renders unavoidable— the link between America’s history of White supremacy and patriarchy and America’s legal structures for regulating marriage and families.” The feminist opinion relies almost entirely on legal, social, and cultural history, in particular the history of marriage and family relationships among and between Blacks and Whites during the colonial, antebellum, and postbellum eras in the American South.

For the authors of this response Essay, both …

Looking To The Litigant: Reaction Essay To Feminist Judgments: Rewritten Opinions Of The United States Supreme Court, Claire B. Wofford

Notre Dame Law Review Reflection

Feminist Judgments’s focus on jurists alone is not unusual. My own discipline has devoted a great deal of study to understanding why and how the justices of the U.S. Supreme Court make the decisions they do. Some of the scholarship has even examined whether women judges might operate differently than their male counterparts, though the findings have been mixed at best. The emphasis, moreover, is understandable and laudable, as it is jurists who have the final say on the content of law.

Emphasizing judicial behavior, however, unfortunately overlooks the fundamental passivity of the courts. As much as they might …

Feminist Judgments And The Future Of Reproductive Justice, Sarah Weddington

Notre Dame Law Review Reflection

Roe v. Wade is one of the twenty-five Supreme Court cases that has been rewritten from a feminist perspective by an imaginative group of law professors and lawyers. This Essay is based on remarks made by Ms. Weddington at a panel discussion held at Temple University Beasley School of Law on November 13, 2017.

Extending The Critical Rereading Project, Gabrielle Appleby, Rosalind Dixon

Notre Dame Law Review Reflection

In this reflection, we want to explain a project in Australia that extends the feminist judgments project and adapts it specifically for the purpose of teaching critical theory, critical legal thinking, and the assumptions inherent in the legal method.

Rewriting Judicial Opinions And The Feminist Scholarly Project, Linda L. Berger, Kathryn M. Stanchi, Bridget J. Crawford

Notre Dame Law Review Reflection

In 1995, the authors of a law review article examining “feminist judging” focused on the existing social science data concerning women judges and compared the voting records and opinions of the only female Justices on the U.S. Supreme Court: Ruth Bader Ginsburg and Sandra Day O’Connor. Based on this review, the authors concluded that appointing more women as judges would make little difference to judicial outcomes or processes. The authors accused those who advocated for more women on the bench of having a hidden feminist agenda and bluntly concluded that “[b]y any measure, feminist judges fit very uneasily in most …

Feminist Judgments And Women's Rights At Work, Gillian Thomas

Notre Dame Law Review Reflection

The history of the law’s treatment of working women is largely a history of the law’s treatment of women’s bodies. Overwhelmingly created by male judges, that jurisprudence considers women from a remove—their physicality, their reproductive capacity, their stature, their sexuality—eclipsing meaningful consideration of their lived experience, on or off the job. As vividly illustrated by so many of the alternative rulings contained in Feminist Judgments, that erasure resulted in Supreme Court decisions that—even when they came out the “right” way, that is, in favor of the female litigant—squandered opportunities for advancing sex equality.

The tantalizing notion of “what might …

Feminist Judgments And The Rewritten Price Waterhouse, Sandra Sperino

Notre Dame Law Review Reflection

In Feminist Judgments, Professor Martha Chamallas reimagines the canonical case of Price Waterhouse v. Hopkins. In that case, the Supreme Court recognized that a plaintiff can prevail on a Title VII claim by showing that a protected trait was a motivating factor in a negative employment outcome. In that case, the Court noted that plaintiffs in discrimination cases should not be required to prove but-for cause to prevail.

The introduction to the Professor Chamallas concurrence correctly notes many of the rewritten opinion’s strengths. Professor Chamallas provides richer detail about the facts underlying the case and the context in …

Feminist Judgments & #Metoo, Margaret E. Johnson

Notre Dame Law Review Reflection

The Feminist Judgments book series and the #MeToo movement share the feminist method of narrative. Feminist Judgments is a scholarly project of rewriting judicial opinions using feminist legal theory. #MeToo is a narrative movement by people, primarily women, telling their stories of sexual harassment or assault. Both Feminist Judgments and #MeToo bring to the surface stories that have been silenced, untold, or overlooked. These narrative collections can and do effectuate genderjustice change by empowering people, changing perspectives, opening up new learning, and affecting future legal and nonlegal outcomes.

How Is Sex Harassment Discriminatory?, Noa Ben-Asher

Notre Dame Law Review Reflection

Feminist Judgments takes us to a key moment in the history of sexual harassment law. In Meritor Savings Bank v. Vinson, the Supreme Court recognized for the first time that both quid pro quo and hostile environment sexual harassment violate Title VII of the Civil Rights Act of 1964. It also held that to be actionable under Title VII, sexual advances must be (1) “unwelcome” and (2) “sufficiently severe or pervasive ‘to alter the conditions of [the victim’s] employment and create an abusive working environment.’” The latter part of the test (“sufficiently severe or pervasive”) fits well into the …