Notre Dame Law Review

Issue 2 is headlined by Professor Lawrence Solum, currently a Professor at Georgetown University Law Center, Editor of the Legal Theory Blog, and an internationally recognized legal theorist and academic.  His piece is titled Communicative Content and Legal Content and investigates a familiar set of problems about the relationship between legal texts (e.g., constitutions, statutes, etc.) and the content of the law (e.g., norms, rules, standards, etc.).  The overall thesis of the essay is the claim that the correct approach to this set of problems is context sensitive—that is, the determination of communicative content and its role in constructing legal content proceeds differently in different legal contexts.

Continuing the scholarship on legal interpretation, Issue 2 will feature a book review by Professor Margaret Lemos of Duke University.  Professor Lemos will review Reading Law: Interpretation of Legal Texts written by Supreme Court Justice Antonin Scalia and Professor Bryan A. Garner.  This review explores the connections between textualist methodology and conservative politics and, more generally, the broader relationship between methodological argument, its facial neutrality, and legal change.

Professor Alan Erbsen at the University of Minnesota Law School has written an article titled Erie’s Four Functions: Reconceptualizing a Puzzling Doctrine, wherein he posits a new framework for rethinking the Erie doctrine in its 75th year.  Erbsen argues that, by fragmenting Erie into its four components (the creation of federal law, the interpretation of its scope, the prioritization of federal law relative to state law, and the adoption of state law when federal law is inapplicable), scholars can clarify the role of each and help to resolve a wide variety of theoretical and practical problems surrounding the doctrine.

Professor Matthew Bodie’s article is the product of an employment law seminar he taught while visiting the Notre Dame Law School from St. Louis University in the Fall 2012 semester.  The article, titled Participation as a Theory of Employment, provides a new doctrinal definition for “employee” based on the concept of participation rather than control.  Drawing on theory of the firm literature, Bodie argues that the participation test better delineates the boundaries of employment and provides a framework for addressing the stresses on firms and workers that are rife within the modern economy.

Offering a unique approach to administrative law, Professor Aaron-Andrew P. Bruhl at the University of Houston Law Center has authored a piece titled Hierarchically Variable Deference to Agency Interpretations.  Bruhl proposes that, instead of applying uniform standards of review at varying levels of the federal judiciary, deference doctrine should be hierarchically variable so as to track the varying institutional circumstances and competencies of different courts.

In Rehabilitating the Property Theory of Copyright’s Exemption from First Amendment Scrutiny, Professor Tun-Jen Chiang of the George Mason University Law School confronts conventional wisdom in the legal academy which has been largely dismissive of the property theory as a means of explaining why copyright should be exempted from compliance with the First Amendment.  By highlighting two significant internal limits, Chiang attempts to moderate the property theory and aid its return to mainstream legal discourse.

Finally, Professor D. Daniel Sokol at the University of Florida has written a piece which uses insights from economics, finance, accounting, and management literatures to bridge the gap in antitrust legal scholarship and offers a novel proposal designed to reduce cartel formation and increase detection of existing cartels.  The article is titled Policing the Firm and has been presented to the Law and Economics Seminar at Harvard Law School and the Harvard/Stanford/Yale Junior Faculty Forum.