University of Notre Dame

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Print Volume 90, Issue 1

November 7, 2014

The first issue of Volume 90 of the Notre Dame Law Review is headlined by Professor Steven Schwarcz, the Stanley A. Star Professor of Law & Business at the Duke University School of Law and Founding Director of Duke’s interdisciplinary Global Financial Markets Center. In his article, The Governance Structure of Shadow Banking: Rethinking Assumptions About Limited Liability, Professor Schwarcz builds on his earlier scholarship, which argues that shadow banking’s radical transformation of finance demands that we rethink some of our most basic assumptions. Here, Professor Schwarcz rethinks a basic assumption of corporate governance—that an owner’s liability should be limited to the capital invested—and proposes to redesign it to better align investor and societal interests.

Our next article arises out of the attack, in recent years, on the traditional approach to proving market power in antitrust law. In Market Power Without Market Definition, Professor Daniel Crane, Associate Dean for Faculty and Research and Frederick Paul Furth, Sr. Professor of Law at the University of Michigan Law School, scrutinizes the core premises that guide modern antitrust analysis and identifies first principles of market power, which will lay the foundation for a more robust approach to proving market power.

In The Equitable Anti-Injunction Act, Professor Erin Morrow Hawley of the University of Missouri School of Law presents a novel argument that, contrary to the conventional wisdom, the Anti-Injunction Act (AIA) does not impose a jurisdictional bar on pre-enforcement tax challenges. Instead, Professor Hawley concludes that the AIA governs the “equity jurisdiction” of federal courts, which opens the door for waiver or forfeiture of the AIA in federal tax litigation.

We are also publishing Professor Lisa Grow Sun and Professor Brigham Daniels with the J. Reuben Clark Law School at Brigham Young University. In their article, Mirrored Externalities, Professors Sun and Daniels analyze the human perception of mirrored externalities—positive and negative externalities that are the mirror image of each other—and how it affects a person’s sense of legal entitlement to engage in (or refrain from engaging in) certain behaviors.

The first Issue also showcases Procedural Rights at Sentencing, an article by Professor Carissa Byrne Hessick and Professor F. Andrew Hessick with the S.J. Quinney College of Law at the University of Utah. This article challenges the distinction courts have made to provide more important procedural safeguards in mandatory sentencing systems than discretionary sentencing systems. Instead, Professors Hessick and Hessick argue that greater procedure in discretionary systems would better serve the underlying rationales for procedural rights.

We are also publishing Professor Wayne Logan, Gary & Sallyn Pajcic Professor of Law at the Florida State University College of Law and his article, A House Divided: When State and Federal Courts Disagree on Federal Constitutional Rights. Here, Professor Logan compares how state and federal courts have exercised their concurrent authority to interpret the federal constitution differently within individual states and analyzes the special impact of that disparity on individual liberty, privacy, and dignitary interest.

Professor Jason Parkin joins us from the Pace University School of Law with his insightful piece, Due Process Disaggregation. In this article, Professor Parkin reevaluates one-size-fits-all approach to due process in light of technological advancements that allow government agencies to readily identify and accommodate subgroups.

Finally, our first issue also features Privatizing Mass Settlement, an article by Professor Jaime Dodge with the University of Georgia School of Law. Professor Dodge explores the reasons behind the rise of private mass settlements and aggregate claims resolution and their implications for aggregate litigation.