View PDF SYMPOSIUM THE ADMINISTRATIVE PROCEDURE ACT: FAILURES, SUCCESSES, AND DANGER AHEAD Emily S. Bremer* Introduction The Administrative Procedure Act (APA) is a profoundly important statute.  Enacted in 1946 and rarely amended since that time, it provides the statutory backbone for the field of administrative law.1  Imbued with quasi-constitutional character, the APA has been recognized as a […]

View PDF SYMPOSIUM THE PATH OF ADMINISTRATIVE LAW REMEDIES Aditya Bamzai* The question whether the term “set aside” in the Administrative Procedure Act (APA) authorizes a federal court to vacate a rule universally—as opposed to setting aside the rule solely as to the plaintiffs—is a significant and contested one.  This Essay traces the history of the […]

View PDF SYMPOSIUM A LACK OF UNIFORMITY, COMPOUNDED, IN IMMIGRATION LAW Jill E. Family* The Administrative Procedure Act (APA) is known for bringing standardization to federal agency behavior.  The APA’s framework for adjudication, however, is lax and incomplete.  It provides standards, but only meaningfully for formal adjudication, and Congress rarely requires agencies to follow the APA’s formal […]

View PDF SYMPOSIUM LIBERALISM AND ORTHODOXY:A SEARCH FOR MUTUAL APPREHENSION Brandon Paradise* & Fr. Sergey Trostyanskiy** Introduction This Article seeks to evaluate and contextualize recently intensifying Christian critiques of liberalism’s intellectual and moral claims.  Much of this recent critique has been from Catholic and Protestant quarters.1  Christianity’s third major branch—Orthodox Christianity—has not played a prominent role in […]

View PDF SYMPOSIUM CATHOLIC LIBERALISM AND THE LIBERAL TRADITION Kathleen A. Brady* Introduction Criticisms of liberalism are nothing new.  All political traditions have their detractors, and as in the past, today’s critics of liberalism include those on the left and right as well as religious believers and those without religious affiliations.1  However, in very recent years, far-reaching […]

View PDF SYMPOSIUM CHRISTIANS AND/AS LIBERALS? Steven D. Smith* Introduction Christianity and liberalism were made to fit each other, like hand and glove.  According to some interpretations, anyway.  Liberal constitutionalism, with its commitments to freedom and equal human dignity, is the political system that reflects and embodies Christian commitments;1 and the constitutional legal order that accompanies liberalism,2 centrally including […]

View PDF SYMPOSIUM NATURAL LAW, PARENTAL RIGHTS, AND THE DEFENSE OF “LIBERAL” LIMITS ON GOVERNMENT:AN ANALYSIS OF THE MORTARA CASE AND ITS CONTEMPORARY PARALLELS Melissa Moschella* This Article explores parallels between integralists’ defense of the Mortara case (in which Pius IX removed a child from his parents’ care in order to provide him with a […]

View PDF SYMPOSIUM TENDER AND TAINT: MONEY AND COMPLICITY IN ENTANGLEMENT JURISPRUDENCE Amy J. Sepinwall* Because liberalism is concerned with individual freedom, it finds that one person is responsible for the conduct of another only under very narrow circumstances.  To a large extent, the law reflects this narrow conception of complicity.  There is however one glaring exception […]

View PDF SYMPOSIUM RELIGIOUS POLITICAL ARGUMENTS, ACCESSIBILITY, AND DEMOCRATIC DELIBERATION Paul Billingham* Christian critics of liberalism, and especially of contemporary public-reason liberalism, often argue that it objectionably excludes religious voices form the public square, by requiring citizens to bracket their religious convictions when they engage in democratic deliberation.  In response, liberals often deny that their views […]

View PDF RESPONSE WHOSE LIBERALISM, WHICH CHRISTIANITY? Jonathan Chaplin* Introduction The papers in this intriguing Symposium all face the perplexing challenge of negotiating a way through the thicket of divergent definitions of both “liberalism” and “Christianity.”  At a time when “Christianity” is thought to be, for some, fundamentally at odds with “liberalism,” or for others, liberalism’s […]

View PDF RESPONSE CONTINGENCY AND CONTESTATION IN CHRISTIANITY AND LIBERALISM Michael P. Moreland* What is the relationship of Christianity to liberalism?  Answers include: Liberalism is a product of the moral legacy of Christianity, such as the dignity of individual human persons, equality, rights, perhaps even some forms of democratic institutionalism.  Or liberalism is a hostile reaction against […]

View PDF SYMPOSIUM “IT IS TASH WHOM HE SERVES”:DENEEN AND VERMEULE ON LIBERALISM Andrew Koppelman* When men and women identify what are in fact their partial and particular causes too easily and too completely with the cause of some universal principle, they usually behave worse than they would otherwise do. —Alasdair MacIntyre1 I love coming […]

View PDF SYMPOSIUM “THE ARC OF THE MORAL UNIVERSE”: CHRISTIAN ESCHATOLOGY AND U.S. CONSTITUTIONALISM Nathan S. Chapman* The role of social and religious sentiment, which was once so critical in the life of our societies, has been largely taken over by law.1 Introduction At the heart of American constitutionalism is an irony.  The United States is […]

View PDF ARTICLE ON THE RIGHTFUL DEPRIVATION OF RIGHTS Frederick Schauer* When people are deprived of their property rights so that the state can build a highway, a school, or a hospital, they are typically compensated through what is commonly referred to as “takings” doctrine.  But when people are deprived of their free speech rights […]

Andrew Koppelman, 98 Notre Dame L. Rev. Reflection 89 (2022)

Zachary B. Pohlman, 98 Notre Dame L. Rev. Reflection 76 (2022)

View PDF NOTE THE FIRST AMENDMENT AND MILITARY JUSTICE Joshua Paldino* INTRODUCTION In his order in U.S. Navy SEALs 1-26 v. Biden, Judge Reed O’Connor opened by stating that “[o]ur nation asks the men and women in our military to serve, suffer, and sacrifice.  But we do not ask them to lay aside their citizenry […]

View PDF ARTICLE SOCIAL TRUST IN CRIMINAL JUSTICE:A METRIC Joshua Kleinfeld* & Hadar Dancig-Rosenberg** What is the metric by which to measure a well-functioning criminal justice system?  If a modern state is going to measure performance by counting something—and a modern state will always count something—what, in the criminal justice context, should it count?  Remarkably, […]

View PDF ARTICLE STATE DIGITAL SERVICES TAXES:A GOOD AND PERMISSIBLE IDEA(DESPITE WHAT YOU MIGHT HAVE HEARD) Young Ran (Christine) Kim* & Darien Shanske** Tax systems have been struggling to adapt to the digitalization of the economy.  At the center of the struggles is taxing digital platforms, such as Google or Facebook.  These immensely profitable firms […]

View PDF ARTICLE SOLIDARITY FEDERALISM Erin F. Delaney* & Ruth Mason** Studies of federalism, especially in the United States, have mostly centered on state autonomy and the vertical relationship between the states and the federal government.  This Article approaches federalism from a different perspective, one that focuses on state solidarity.  We explain how solidarity structures […]