View PDF ARTICLE THE CONSTITUTIONAL LAW OF INTERPRETATION Anthony J. Bellia Jr.* & Bradford R. Clark** The current debate over constitutional interpretation often proceeds on the assumption that the Constitution does not provide rules for its own interpretation.  Accordingly, several scholars have attempted to identify applicable rules by consulting external sources that governed analogous legal […]

View PDF NOTE PUT MAHANOY WHERE YOUR MOUTH IS:A CLOSER LOOK AT WHEN SCHOOLSCAN REGULATE ONLINE STUDENT SPEECH Courtney Klaus* INTRODUCTION It was the Snapchat story that sparked four years of litigation,1  viral press coverage,2  and a trendy t-shirt design3 : “Fuck school fuck softball fuck cheer fuck everything.”4   By June of 2021, it was finally […]

View PDF NOTE DEMOCRACY’S FORGOTTEN POSSESSIONS: U.S. TERRITORIES’ RIGHT TO STATEHOOD THROUGH CONSTITUTIONAL LIQUIDATION Joshua Stephen Ebiner* INTRODUCTION The United States has five permanently inhabited, unincorporated territories—American Samoa, Guam, the Northern Mariana Islands, Puerto Rico, and the U.S. Virgin Islands (the “Territories”)—which account for approximately four million U.S. citizens and nationals.1   The concept of an […]

View PDF ARTICLE DEBS AND THE FEDERAL EQUITY JURISDICTION Aditya Bamzai* & Samuel L. Bray** The United States can sue for equitable relief without statutory authorization.  The leading case on this question is In re Debs, and how to understand that case is of both historical and contemporary importance.  Debs was a monumental opinion that […]

Edward L. Pickup & Hannah L. Templin, 98 Notre Dame L. Rev. Reflection 1 (2022)

View PDF NOTE SPEAKING OF THE SPEECH OR DEBATE CLAUSE: REVISING STATE LEGISLATIVE IMMUNITY Shane Coughlin* INTRODUCTION An increasing number of America’s most contentious issues will be resolved in state legislatures.  Consequently, the ability of litigants to seek judicial review of a legislature’s actions is becoming more important.  The scope of state legislative immunity, a […]

View PDF ARTICLE AGAINST SECONDARY MEANING Jeanne C. Fromer* Trademark law premises protection and scope of marks on secondary meaning, which is established when a mark develops sufficient association to consumers with a business as a source of goods or services in addition to the mark’s linguistic primary meaning.  In recent years, scholars have proposed […]

View PDF ARTICLE THE MORAL AUTHORITY OF ORIGINAL MEANING J. Joel Alicea* One of the most enduring criticisms of originalism is that it lacks a sufficiently compelling moral justification.  Scholars operating within the natural law tradition have been among the foremost critics of originalism’s morality, yet originalists have yet to offer a sufficient defense of […]

NOTE REMEDYING THE IMMORTAL: THE DOCTRINE OF ACCESSION AND PATENTED HUMAN CELL LINES Julia E. Fissore-O’Leary* INTRODUCTION Justice Cardozo once remarked, “[e]very human being of adult years and sound mind has a right to determine what shall be done with [their] own body.”1   Henrietta Lacks was not afforded this right.2   In 1951, Lacks, a thirty-one-year-old […]

View PDF ARTICLE INTERRING THE UNITARY EXECUTIVE Christine Kexel Chabot* The President’s power to remove and control subordinate executive officers has sparked a constitutional debate that began in 1789 and rages on today.  Leading originalists claim that the Constitution created a “unitary executive” President whose plenary removal power affords her “exclusive control” over subordinates’ exercise […]

View PDF ARTICLE PRIVACY QUI TAM Peter Ormerod*  Privacy law keeps getting stronger, but surveillance-based businesses have proven immune to these new legal regimes.  The disconnect between privacy law in theory and in practice is a multifaceted problem, and one critical component is enforcement. Today, most privacy laws are enforced by governmental regulators—the Federal Trade […]

Nadia Banteka & Erika Nyborg-Burch, 98 Notre Dame L. Rev. Reflection 40 (2022)

View PDF ARTICLE RELIGIOUS LIBERTY AND JUDICIAL DEFERENCE Mark L. Rienzi* Many of the Supreme Court’s most tragic failures to protect constitutional rights—cases like Plessy v. Ferguson, Buck v. Bell, and Korematsu v. United States—share a common approach: an almost insuperable judicial deference to the elected branches of government.  In the modern era, this approach […]

NOTE “A SWORD IN THE BED”: BRINGING AN END TO THE FUSION OF LAW AND EQUITY Brooks M. Chupp* INTRODUCTION The procedural distinction between law and equity in the United States is largely a historical footnote in the present day.  David Dudley Field, the notorious lawyer who advocated for the end to the distinction between […]

View PDF BOOK REVIEW RECOVERING CLASSICAL LEGAL CONSTITUTIONALISM: A CRITIQUE OF PROFESSOR VERMEULE’S NEW THEORY Jeffrey A. Pojanowski* & Kevin C. Walsh** COMMON GOOD CONSTITUTIONALISM: RECOVERING THE CLASSICAL LEGAL TRADITION. By Adrian Vermeule. Polity Press. 2022. INTRODUCTION Professor Adrian Vermeule has provoked renewed interest in the relationship between the classical natural law tradition and the […]

View PDF ARTICLE INTERPRETING STATE STATUTES IN FEDERAL COURT Aaron-Andrew P. Bruhl* This Article addresses a problem that potentially arises whenever a federal court encounters a state statute.  When interpreting the state statute, should the federal court use the state’s methods of statutory interpretation—the state’s canons of construction, its rules about the use of legislative […]