October 25, 2024
View PDF Note Proper Parents, Proper Relief Katie Grace Graziano* INTRODUCTION Indian children belong with Indian parents—or so says the Indian Child Welfare Act (ICWA).[1] ICWA requires certain procedures for carrying out the adoption of an Indian child. Among those procedures is an explicit preference for Indian families over non-Indian families. The hierarchy is so […]
Read More
October 25, 2024
View PDF Note Whose Equity? Interpreting Statutes Authorizing Equitable Remedies Drew Garden* INTRODUCTION The role of equity in federal law has sparked significant recent debate. Much ink has been spilled over the appropriate role of the general equity power in federal jurisprudence.[1] Less attention has been paid to the interpretation of statutes explicitly authorizing equitable […]
Read More
October 25, 2024
View PDF Article The Public/Private Rights Critics Ann Woolhandler* & Michael G. Collins** In Adjudication in the Political Branches, Professor Caleb Nelson provided an influential account of when federal adjudication might take place outside of the Article III courts.[1] The ability of Congress to place adjudicative matters outside of Article III courts largely depended on whether the […]
Read More
October 25, 2024
View PDF Article The Seventh Amendment Right to Jury Trial in the Administrative State: Recognizing the Dangers of the Constitutional Moment Martin H. Redish* & Samy Abdelsalam** One prominent constitutional scholar has sought to legitimize this constitutional transformation through resort to a strange and controversial analytical model he describes as the “constitutional moment.”[9] In this […]
Read More
October 25, 2024
View PDF Article Non–Article III Federal Tribunals: An Essay on the Relation Between Theory and Practice Richard H. Fallon, Jr.* Since the 1980s, the Supreme Court’s decisions involving the permissible uses of non–Article III federal tribunals have repeatedly invoked two competing theories. A “historical-exceptions” or “formalist” model would insist that only Article III judges can exercise federal adjudicative […]
Read More
August 16, 2024
Steven T. Collis, 99 Notre Dame L. Rev. Reflection 229 (2024)
Read More
August 16, 2024
Perry Dane, 99 Notre Dame L. Rev. Reflection 247 (2024)
Read More
August 16, 2024
Steven K. Green, 99 Notre Dame L. Rev. Reflection 269 (2024)
Read More
August 16, 2024
Robin Fretwell Wilson & Michael J. Petersen, 99 Notre Dame L. Rev. Reflection 289 (2024)
Read More
August 16, 2024
Netta Barak-Corren, 99 Notre Dame L. Rev. Reflection 331 (2024)
Read More
August 16, 2024
Noah Austin, 99 Notre Dame L. Rev. Reflection 349 (2024)
Read More
August 16, 2024
Sarah E. Barritt, 99 Notre Dame L. Rev. Reflection 375 (2024)
Read More
August 15, 2024
View PDF Article Historical Fact Ryan C. Williams* The growing emphasis on history as a criterion of constitutional decision-making in Supreme Court jurisprudence has raised the importance of a distinctive type of judicial fact-finding—namely, the investigation and resolution of contested questions of historical fact. Although history has always played an important role in constitutional adjudication, […]
Read More
August 15, 2024
View PDF Essay Guns, Analogies, and Constitutional Interpretation Across Centuries Frederick Schauer* & Barbara A. Spellman** In New York State Rifle & Pistol Ass’n v. Bruen, the Supreme Court acknowledged the difficulties in applying its constitutional originalism to the question of firearms regulation.[1] After all, the fully automatic assault rifles whose sale, possession, and use […]
Read More
August 15, 2024
View PDF Essay What Originalism Can Teach Historians: History as Analogy, Means-Ends Tests, and the Problem of History in Bruen Kunal M. Parker* There is a long tradition of professional historians’ critiques of lawyers’ truncated understandings and clumsy deployments of the past. The intellectual historian J.G.A. Pocock’s The Ancient Constitution and the Feudal Law, with […]
Read More
August 14, 2024
View PDF Note Elastic Batch and Bellwether Proceedings in Mass Arbitration Bennett Rogers* Since the Advisory Committee revised Federal Rule of Civil Procedure 23 in 1966,[1] multiparty dispute resolution has become one of the world’s most expensive cat-and-mouse games. In an ever-changing aggregative landscape, both plaintiffs and defendants have aimed to establish a favorable legislative […]
Read More
August 14, 2024
View PDF Note Strengthening State Constitutions Jared C. Huber* The “issue of whether pregnant pigs should be singled out for special protection is simply not a subject appropriate for inclusion in our State constitution; rather it is a subject more properly reserved for legislative enactment.”[1] So said Justice Pariente when evaluating ballot eligibility for a […]
Read More
August 14, 2024
View PDF Essay Diverse Originalism, History & Tradition Christina Mulligan* The Supreme Court’s New York State Rifle & Pistol Ass’n v. Bruen decision appears to be an originalist opinion, ostensibly looking for the meaning of the Constitution’s text by looking to the public’s understanding of the language used. But Bruen’s test actually fails to follow […]
Read More
August 14, 2024
View PDF Article The General-Law Right to Bear Arms William Baude* & Robert Leider** INTRODUCTION New York State Rifle & Pistol Ass’n v. Bruen[1] marked an important methodological return to original legal principles. The legal issues in the case were whether the right to bear arms included the general right to carry handguns outside the […]
Read More
August 14, 2024
View PDF Article Bruen’s Enforcement Puzzle: Unearthing and Adjudicating the Historical Enforcement Record in Second Amendment Cases Andrew Willinger* The Supreme Court’s 2022 decision in New York State Rifle & Pistol Ass’n v. Bruen brings historical complexity to the fore by instituting a history-focused test for the Second Amendment that demands analogues from the Founding […]
Read More