Notre Dame Law Review

Youngjae Lee, 99 Notre Dame L. Rev. Reflection 191 (2024)

Micah Allred, 99 Notre Dame L. Rev. Reflection 151 (2024)

View PDF Article Intellectual Property and the Myth of Nonrivalry James Y. Stern* The concept of rivalry is central to modern accounts of property.  When one person’s use of a resource is incompatible with another’s, a system of rights to determine its use may be necessary.  It is commonly asserted, however, that informational goods like […]

View PDF ARTICLE Climate Zoning Christopher Serkin* As the urgency of the climate crisis becomes increasingly apparent, many local governments are adopting land use regulations aimed at minimizing greenhouse gas (GHG) emissions.  The emerging approaches call for loosening zoning restrictions to unlock greater density and for strict new green building codes.  This Article argues that […]

View PDF ARTICLE Pretrial Commitment and the Fourth Amendment Laurent Sacharoff* Today, the Fourth Amendment Warrant Clause governs arrest warrants and search warrants only.  But in the founding era, the Warrant Clause governed a third type of warrant: the “warrant of commitment.”  Judges issued these warrants to jail defendants pending trial. This Article argues that […]

View PDF ARTICLE Rethinking Legislative Facts Haley N. Proctor* As the factual nature of legal inquiry has become increasingly apparent over the past century, courts and commentators have fallen into the habit of labeling the facts behind the law “legislative facts.”  Loosely, legislative facts are general facts courts rely upon to formulate law or policy, […]

View PDF Article Admiralty, Abstention, and the Allure of Old Cases Maggie Gardner* The current Supreme Court has made clear that history matters.  But doing history well is hard.  There is thus an allure to old cases because they provide a link to the past that is more accessible for nonhistorian lawyers.  This Article warns […]

View PDF Article Tying Law for the Digital Age David A. Crane* Tying arrangements, a central concern of antitrust policy since the early days of the Sherman and Clayton Acts, have come into renewed focus with respect to the practices of dominant technology companies.  Unfortunately, tying law’s doctrinal structure is a self-contradictory and incoherent wreck.  […]

Will Clark, 99 Notre Dame L. Rev. Reflection 137 (2023)

Guha Krishnamurthi & Peter N. Salib, 99 Notre Dame L. Rev. Reflection 93 (2023)

Bill Watson, 99 Notre Dame L. Rev. Reflection 113 (2023)

View PDF ARTICLE Converse-Osborn: State Sovereign Immunity, Standing, and the Dog-Wagging Effect of Article III Carlos M. Vázquez* “[T]he legislative, executive, and judicial powers, of every well constructed government, are co-extensive with each other . . . .  [T]he judicial department may receive from the Legislature the power of construing every . . . law [which the Legislature may constitutionally make].”[1]  Chief […]

View PDF ARTICLE Common Law Statutes Charles W. Tyler* The defining feature of a “common law statute” is that it resists standard methods of statutory interpretation.  The category includes such important federal statutes as the Sherman Act, § 1983, and the Labor Management Relations Act, among others.  Despite the manifest significance of common law statutes, existing […]

View PDF ARTICLE Midstream Contract Interpretation Alan Schwartz* & Simone M. Sepe** This Article makes two original contributions to the contract interpretation and renegotiation literatures.  First, we introduce an underexplored cause of renegotiation failure: party uncertainty regarding the type of court that will interpret their contract.  Parties may predict differently how the applicable court will […]

View PDF ARTICLE The Conferred Jurisdiction of the International Criminal Court Leila Nadya Sadat* After twenty years of operation, we know that the International Criminal Court (ICC) works in practice.  But does it work in theory?  A debate rages regarding the proper conceptualization of the Court’s jurisdiction.  Some have argued that the ICC’s jurisdiction is […]

View PDF ARTICLE Preventing Undeserved Punishment Marah Stith McLeod* Defendants should not be punished more than they deserve.  Sentencing scholars describe this precept against undeserved punishment as a consensus norm in American law and culture.  Yet America faces a plague of mass incarceration, and many sanctions seem clearly undeserved, often far exceeding an offender’s culpability […]

View PDF Article An Originalist Approach to Prospective Overruling John O. McGinnis* & Michael Rappaport** Originalism has become a dominant jurisprudential theory on the Supreme Court.  But a large number of precedents are inconsistent with the Constitution’s original meaning and overturning them risks creating enormous disruption to the legal order.  This article defends a prospective […]

Richard M. Re, 99 Notre Dame L. Rev. Reflection 67 (2023)

Michael D. Ramsey, 99 Notre Dame L. Rev. Reflection 47 (2023)

Adam Reed Moore, 99 Notre Dame L. Rev. Reflection 1 (2023)