Notre Dame Law Review

The second issue of Volume 91 of the Notre Dame Law Review is headlined by Professors Anthony J. Casey and Eric A. Posner of the University of Chicago Law School.  In their article, A Framework for Bailout Regulation, Professors Casey and Posner examine the bailouts from and preceding the 2008 financial crisis to consider the policy considerations justifying these bailouts and their optimal design.  The authors conclude by laying out the principal considerations for governing future bailouts: the macroeconomic impacts of failure; the moral hazard effect of the bailout; the discriminatory effect of the bailout; and procedural fairness.

Next, Professor Cecelia Klingele of the University of Wisconsin Law School contributes an article titled The Promises and Perils of Evidence-Based Corrections.  The article highlights the unintended ways in which evidence-based corrections tools might expand, rather than reduce, problems of mass incarceration.  Professor Klingele realizes the benefits of these evidence-based practices but calls on policymakers to implement them in ways that improve the quality and fairness of the criminal justice system and do not reinforce the institutional constructs that have sustained the growth of the penal state.

Then, in Standing Doctrine’s State Action Problem, Professor Seth Davis of the University of California, Irving School of Law critiques the Supreme Court’s newfound agency rule in Hollingsworth v. Perry, offering an alternative way to address issues of state action in standing doctrine.

In Privacy and Markets: A Love Story, Professor Ryan Calo of the University of Washington Law School offers a novel account of the relationship between privacy and markets, positing that the two concepts are sympathetic instead of antithetical, as is often assumed.

The next article, Why the Right to Elective Abortion Fails Casey’s Own Interest-Balancing Methodology, is by Professor Stephen G. Gilles of the Quinnipiac University School of Law.  Professor Gilles offers a compelling case that the right to elective abortion fails on Casey’s own terms, stare decisis aside.  In doing so, he marshals substantial historical evidence to show that the American legal tradition supports a “reasoned judgment” that pre-viable fetal life outweighs a woman’s interest in elective abortion.

Finally, Issue 2 concludes with DNA and Distrust by Professors Kerry Abrams and Brandon L. Garrett of the University of Virginia Law School.  Professors Abrams and Garrett argue that the policy implications of genetic testing law are not as easily identifiable as many believe.  The authors conclude that the regulation of genetic evidence deserves far more careful legal scrutiny, because the manner in which genetic evidence is deployed can profoundly affect constitutional rights and the structure of legal and social institutions.