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Nov 17

Emergency-Docket Experiments

posted by Nicholas D'Andrea

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

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Nov 16

Speaking of the Speech or Debate Clause: Revising State Legislative Immunity

posted by Nicholas D'Andrea

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 […]

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Nov 16

Against Secondary Meaning

posted by Nicholas D'Andrea

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 […]

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Nov 16

The Moral Authority of Original Meaning

posted by Nicholas D'Andrea

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 […]

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Nov 16

Remedying the Immortal: The Doctrine of Accession and Patented Human Cell Lines

posted by Nicholas D'Andrea

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 […]

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Nov 16

Interring the Unitary Executive

posted by Nicholas D'Andrea

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 […]

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Nov 16

Privacy Qui Tam

posted by Nicholas D'Andrea

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 […]

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Nov 16

Rethinking Constitutionally Impermissible Punishment

posted by Nicholas D'Andrea

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

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Nov 3

Religious Liberty and Judicial Deference

posted by Nicholas D'Andrea

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 […]

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Nov 3

“A Sword in the Bed”: Bringing an End to the Fusion of Law and Equity

posted by Nicholas D'Andrea

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 […]

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Nov 2

Recovering Classical Legal Constitutionalism: A Critique of Professor Vermeule’s New Theory

posted by Nicholas D'Andrea

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 […]

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Nov 2

Interpreting State Statutes in Federal Court

posted by Nicholas D'Andrea

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 […]

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