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Print Volume 91, Issue 5

October 4, 2016

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Issue 5 of Volume 91 is the annual Federal Courts, Practice, and Procedure Issue of the Notre Dame Law Review. The contributors to this year’s special issue are six leading Federal Courts scholars who prepared these pieces for a Federal Courts Section of the Association of American Law Schools panel. The panel was dedicated to examining areas of Federal Courts law on which the late Professor Daniel Meltzer’s tremendous scholarship had particular influence.

The first article in Issue 5 is authored by Professor Richard H. Fallon, Jr., of Harvard Law School. Professor Fallon, Daniel Meltzer’s long-time co-author, here addresses the appropriate role of the federal courts in statutory interpretation. Building on themes from his earlier work with Professor Meltzer, Professor Fallon argues that the federal courts are Congress’s junior partners in lawmaking, tasked with giving just and workable effect to statutory language.

Professor Vicki C. Jackson of Harvard Law School, a colleague of Professor Meltzer’s, contributes this issue’s second piece. Professor Jackson examines legislative standing in the context of separation of powers disputes, building on Professor Meltzer’s thought in this area and outlining an analytic framework for evaluating these standing questions.
Our third article is written by Professor Henry Paul Monaghan of Columbia Law School. Here he considers the federal courts’ authority to equitably enjoin state law’s enforcement on the basis of federal preemption. The article evaluates this question in light of the intersection of two recent Supreme Court cases: Armstrong v. Exceptional Child Center, Inc., and Lexmark International, Inc. v. Static Control Components, Inc.

Yale Law School’s Professor Judith Resnik contributes another article to this issue, drawing on Professor Meltzer’s insights regarding the intellectual heritage modern lawyers owe to the federal courts. Professor Resnik argues that, given the increase in state court litigation as result of restricted access to the federal courts, a new intellectual heritage will be necessary.

Harvard Law School Professor David L. Shapiro, a long-time collaborator and colleague of Professor Meltzer’s, provides a piece addressing the role of federal judicial authority in “arising under” cases where federal issues are embedded in the resolution of a state-law question. Professor Shapiro focuses particularly on this issue’s treatment in the seventy years that have passed since the Supreme Court’s decision in Standard Oil Co. of California v. Johnson.

Professor Amanda L. Tyler of the University of California Berkeley School of Law contributes our final article from the panel dedicated to Daniel Meltzer. Professor Tyler, a student of Meltzer’s at Harvard Law School, responds to one of his and Professor Fallon’s articles suggesting a common law approach to habeas corpus law. Professor Tyler discusses the historical importance of the English Habeas Corpus Act, and points to its potential implications for United States courts’ habeas jurisprudence.

Issue 5 also contains articles from Professor Russell M. Gold of Wake Forest University School of Law and University of Iowa College of Law’s Professor Mihailis E. Diamantis. Professor Gold’s piece addresses the compensation available in class actions, arguing that law-and-economics scholarship is mistaken to the degree it suggests that the division of such compensation within a class has no impact on deterrence. Rather, Professor Gold argues, scholars have not previously recognized the ways in which class actions’ objectives of compensation and deterrence are intertwined.

Drawing on recent discoveries in cognitive science, Professor Diamantis’ article offers a new approach to the problem of mens rea in corporate criminal law, one that better serves the criminal law’s deterrent, retributive, and expressive goals by permitting factfinders to treat corporate defendants much like natural person defendants. Rather than imposing unjustifiable mental state attribution theories on the factfinder, Professor Diamantis’s proposal allows holistic evaluation of a corporate defendant’s mental state.