Notre Dame Law Review

The third issue of Volume 90 of the Notre Dame Law Review is headlined by Professor Ronald J. Krotoszynski, the John S. Stone Chair Professor of Law at the University of Alabama Law School, with his co-authors Johnjerica Hodge and Wesley Wintermyer. In their article, Partisan Balance Requirements in the Age of New Formalism, Professor Krotoszynski posits that, in light of Free Enterprise Fund v. PCAOB, partisan balance requirements may violate the separation of powers when in combination with a good cause removal limit.

Our third issue also features Taking Cues From Congress: Judicial Review, Congressional Authorization, and the Expansion of the Presidential Power, an article by Professor David Moore, at Brigham Young University’s J. Reuben Clark Law School. Under the Supreme Court’s primary approaches for gauging presidential power, congressional approval generally produces a finding of constitutionality. Professor Moore, however, demonstrates how congressional authorization may violate the separation of powers when it results from a failure of checks and balances.

In Introspection Through Litigation, Professor Joanna Schwartz, of the UCLA School of Law, analyzes the benefits of litigation from the perspective of the organizational defendant. Using police departments and hospitals for comparison, Professor Schwartz asserts that organizations that gather and analyze the information produced by lawsuits stand to greatly improve their systems and personnel.

In Foresight Bias in Patent Law, Professor Sean Seymore, at the Vanderbilt Law School, draws attention to the bias in current patent reform against inventions in chemistry and biotechnology (e.g., chemical compounds and DNA fragments). Here, Professor Seymore proposes a new paradigm to determine the patentability of “building block” inventions that does not rely on the utility requirement.

Our next article, Incorporating Legal Claims, is by Professor Maya Steinitz, of the University of Iowa College of Law. In her article, Professor Steinitz suggests that the problems created by commercial litigation finance reflect the classic problems created by the separation of ownership and control. Professor Steinitz then analyzes whether different instances of financial–legal innovation can be address the core challenges presented by the separation of ownership of and control over legal claims.

In their article, Reconciling Intellectual and Personal Property, Professor Aaron Perzanowski, with the Case Western Reserve University School of Law, and Professor Jason Schultz, with the New York University School of Law, attempt to construct a notion of consumer property rights in digital media where the familiar concept of “copies” in copyright law is disappearing.

We will also be publishing an article by Professor Wentong Zheng, with the University of Florida’s Levin College of Law: The Revolving Door. A growing body of empirical literature is challenging the long-held presumption that the revolving door between the public and private sectors leads to the capture of regulators by industry interests. Here, Professor Zheng theorizes that the revolving door may result in more aggressive regulation due to the incentive for regulators to expand the market demand for services they would provide after leaving the public sector.

Our third issue concludes with Reflections on Comity in the Law of American Federalism, an article by Professor Gil Seinfeld, of the University of Michigan Law School. In this issue, Professor Seinfeld explores how principles of comity—from the law of international relations—arise in the law of American federalism and whether this pattern reflects a deeper understanding of state sovereignty in the context of our federal system.