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Print Volume 90, Issue 5

August 2, 2015

Issue 5 of Volume 90 is the annual Federal Courts, Practice, and Procedure Issue of the Notre Dame Law Review. The scholarship in this issue largely focuses on the role of history in properly interpreting Article III of the Constitution.

The first article in Issue 5 is authored by Professor Amanda Tyler of the University of California, Berkeley School of Law. Professor Tyler begins the issue with an article examining the role history should play in the federal courts canon. Professor Tyler cautions against assigning certain evidence from the founding period determinative weight, and suggests treating each data point as part of a greater whole in examining the role of the judicial power in our constitutional framework.

Professor Richard Fallon of Harvard Law School contributes Issue 5’s second article. Professor Fallon illustrates that the historical record widely accepted as important to constitutional interpretation is more nuanced and complex than often considered. His article will surely spur conversation about what types of history are pertinent in different types of cases.

William and Mary Law School’s Tara Leigh Grove contributes another article touching on the importance of history in the Article III context. Using the Article III’s Exceptions Clause as an example, Professor Grove argues that searching attention to the practices and constitutional interpretations of the political branches regarding that clause is warranted. This is at least partly so because much of the constitutional history of the federal courts has been authored by the legislative and executive branches. Professor Grove’s article raises important questions about whether the practices of the political branches should inform the judiciary’s interpretation of Article III.

Professor Kevin Walsh of the University of Richmond School of Law looks to history in challenging the universally-held assumption that section 25 of the Judiciary Act of 1789 authorized appellate review of state criminal prosecutions by the Supreme Court. This issue remains relevant today, as those who argue that Article III mandates federal jurisdiction in certain types of cases must now contend with the gap between what they say Congress was required to authorize and what Congress did authorize. If Professor Walsh’s view is correct, that gap is larger than previously thought.

Professor Philip Hamburger of Columbia Law School provides the final full article of Issue 5. Professor Hamburger offers a powerful argument that administrative lawmaking and section 501(c)(3) of the Internal Revenue Code substantially exclude religious Americans from the political process that produces laws. Because of this exclusion, apparently equal laws are apt to treat religious Americans unequally. To avoid this threat to equality, Professor Hamburger suggests courts should adopt different approaches to administrative and statutory burdens on religion.

Issue 5 also contains two essay in honor of Notre Dame Professor Robert E. Rodes, Jr., both introduced by Notre Dame’s own Richard Garnett. Professor Marie Failinger of Hamline University discusses Rodes’ scholarship as a whole while, in a nod to Professor Rodes’ past work, Professor Samuel Levine of the Touro Law Center examines the rhetoric employed by judges when discussing the roles of prosecutors and criminal defense lawyers within our adversarial system.