University of Notre Dame

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Print Volume 90, Issue 2

December 29, 2014

The second issue of Volume 90 of the Notre Dame Law Review is headlined by Professor Steven Calabresi, the Clayton J. and Henry R. Barber Professor of Law at Northwestern University School of Law, and Professor Gary Lawson, the Phillip S. Beck Professor of Law at Boston University School of Law. In their essay, The Rule of Law as a Law of Law, Professors Calabresi and Lawson explore the consistency of Justice Scalia’s strong rule orientation with the original meaning of the Constitution. In their pursuit, the authors demonstrate how standards pervade not only the Bill of Rights and the Fourteenth Amendment, but the entire scheme of enumerated powers.

Next, Professor Dan Burk, of the University of California, Irvine School of Law, has written an article titled The Curious Incident of the Supreme Court in Myriad Genetics, which analyzes the meaning of the Supreme Court’s silence in Myriad Genetics over the holding in its immediately preceding patent subject matter case, Mayo v. Prometheus.

Then, in The Vonage Trilogy: A Case Study in Patent Bullying, Professor Ted Sichelman, with the University of San Diego School of Law, uses three patent infringement lawsuits against Vonage to study the danger to the patent system posed by “patent bullies”—large companies which institute patent infringement actions against smaller companies to suppress competition.

In Constitutional Limits on Surveillance: Associational Freedom in the Age of Data Hoarding, Professor Deven Desai, of the Georgia Institute of Technology, offers a new perspective into how modern “backward-looking” surveillance techniques evade the constitutional protections of warrants. Drawing on our understanding of associational freedom under the First Amendment, Desai argues that Fourth Amendment principles may nevertheless provide a check on the use and retention of the information collected.

Our second issue also features Professor Mark DeGirolami, of St. John’s University School of Law, and Professor Kevin Walsh, of the University of Richmond School of Law, with their article, Judge Posner, Judge Wilkinson, and Judicial Critique of Constitutional Theory. Here, the authors evaluate the rejection of constitutional theory by Judge Richard Posner and Judge J. Harvie Wilkinson III and the apparent contradiction in replacing constitutional theory with their own personal theories of judicial pragmatism and judicial restraint, respectively.

Our next article, Immigration Separation of Powers and the President’s Power to Preempt, is by Professor Catherine Kim, with the University of North Carolina School of Law. Here, Professor Kim argues that the unique considerations of a national immigration policy warrant fewer restrictions on the constitutional power of the President to preempt state law, proposing a new functionalist approach to defining the contours of executive authority in the context of immigration.

We are also publishing John David Ohlendorf, a fellow and visiting lecturer at the Georgetown University Law Center, with his article, Against Coherence in Statutory Interpretation. Mr. Ohlendorf takes the position that courts should abandon their quest to make the entire body of law “speak with one voice.” He then demonstrates how the desire for coherence conflicts with modern preemption doctrine and undermines the compromises that allow Congress to act.

Finally, our second issue showcases Quasi-Inquisitorialism: Accounting for Deference in Pretrial Criminal Procedure, an article by Professor Jennifer Laurin, with the University of Texas School of Law. In her article, Professor Laurin challenges our putative preference for an adversarial criminal system by uncovering inquisitorial traditions in our pretrial procedure. She then demonstrates how an understanding of “quasi-inquisitorialism” in the criminal system offers greater leverage for reform in investigative oversight, pretrial discovery, and plea bargaining.