University of Notre Dame

Lawyer.2d

Congressional Power to Institute a Wealth Tax

January 16, 2024

Will Clark, 99 Notre Dame L. Rev. Reflection 137 (2023)

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Qualified Immunity as Gun Control

January 16, 2024

Guha Krishnamurthi & Peter N. Salib, 99 Notre Dame L. Rev. Reflection 93 (2023)

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Did the Court in SFFA Overrule Grutter?

January 16, 2024

Bill Watson, 99 Notre Dame L. Rev. Reflection 113 (2023)

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Converse-Osborn: State Sovereign Immunity, Standing, and the Dog-Wagging Effect of Article III

January 16, 2024

View PDF ARTICLE Converse-Osborn: State Sovereign Immunity, Standing, and the Dog-Wagging Effect of Article III Carlos M. Vázquez* “[T]he legislative, executive, and judicial powers, of every well constructed government, are co-extensive with each other . . . .  [T]he judicial department may receive from the Legislature the power of construing every . . . law [which the Legislature may constitutionally make].”[1]  Chief […]

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Common Law Statutes

January 16, 2024

View PDF ARTICLE Common Law Statutes Charles W. Tyler* The defining feature of a “common law statute” is that it resists standard methods of statutory interpretation.  The category includes such important federal statutes as the Sherman Act, § 1983, and the Labor Management Relations Act, among others.  Despite the manifest significance of common law statutes, existing […]

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Midstream Contract Interpretation

January 16, 2024

View PDF ARTICLE Midstream Contract Interpretation Alan Schwartz* & Simone M. Sepe** This Article makes two original contributions to the contract interpretation and renegotiation literatures.  First, we introduce an underexplored cause of renegotiation failure: party uncertainty regarding the type of court that will interpret their contract.  Parties may predict differently how the applicable court will […]

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The Conferred Jurisdiction of the International Criminal Court

January 16, 2024

View PDF ARTICLE The Conferred Jurisdiction of the International Criminal Court Leila Nadya Sadat* After twenty years of operation, we know that the International Criminal Court (ICC) works in practice.  But does it work in theory?  A debate rages regarding the proper conceptualization of the Court’s jurisdiction.  Some have argued that the ICC’s jurisdiction is […]

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Preventing Undeserved Punishment

January 16, 2024

View PDF ARTICLE Preventing Undeserved Punishment Marah Stith McLeod* Defendants should not be punished more than they deserve.  Sentencing scholars describe this precept against undeserved punishment as a consensus norm in American law and culture.  Yet America faces a plague of mass incarceration, and many sanctions seem clearly undeserved, often far exceeding an offender’s culpability […]

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An Originalist Approach to Prospective Overruling

January 16, 2024

View PDF Article An Originalist Approach to Prospective Overruling John O. McGinnis* & Michael Rappaport** Originalism has become a dominant jurisprudential theory on the Supreme Court.  But a large number of precedents are inconsistent with the Constitution’s original meaning and overturning them risks creating enormous disruption to the legal order.  This article defends a prospective […]

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Does the Discourse on 303 Creative Portend a Standing Realignment?

November 29, 2023

Richard M. Re, 99 Notre Dame L. Rev. Reflection 67 (2023)

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Presidential Power and What the First Congress Did Not Do

November 29, 2023

Michael D. Ramsey, 99 Notre Dame L. Rev. Reflection 47 (2023)

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A Textualist Defense of a New Collateral Order Doctrine

November 29, 2023

Adam Reed Moore, 99 Notre Dame L. Rev. Reflection 1 (2023)

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Reversing Incorporation

November 22, 2023

View PDF ARTICLE Reversing Incorporation Ilan Wurman* It is originalist gospel that the Fourteenth Amendment’s Privileges or Immunities Clause was intended, at a minimum, to incorporate the Bill of Rights against the states.  This Article revisits forty years of scholarship and concludes that this modern consensus is likely mistaken.  Reconstructing antebellum discourse on fundamental rights […]

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The Myth of the Federal Private Nondelegation Doctrine

November 22, 2023

View PDF ARTICLE The Myth of the Federal Private Nondelegation Doctrine Alexander Volokh* Judges and scholars have often claimed that delegations of governmental power to private parties are constitutionally prohibited.  However, such a “private nondelegation doctrine” is elusive, if not nonexistent. To understand why, first we need to realize that there are actually several distinct […]

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Harmful Precautions

November 22, 2023

View PDF ARTICLE Harmful Precautions Ronen Perry* According to the conventional definition of reasonableness, commonly known as the Hand formula, a person acts unreasonably (hence negligently) toward another if they fail to take precautions whose cost for the actor is lower than the expected loss for the other that these precautions can prevent.  While law-and-economics […]

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What Twenty-First-Century Free Speech Law Means for Securities Regulation

November 22, 2023

View PDF ARTICLE What Twenty-First-Century Free Speech Law Means for Securities Regulation Helen Norton* Securities law has long regulated securities-related speech—and until recently, it did so with little, if any, First Amendment controversy.  Yet the antiregulatory turn in the Supreme Court’s twenty-first-century Free Speech Clause doctrine has inspired corporate speakers’ increasingly successful efforts to resist […]

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Against the Chenery II “Doctrine”

November 22, 2023

View PDF ARTICLE Against the Chenery II “Doctrine” Gary S. Lawson* & Joseph Postell** The Supreme Court’s 1947 decision in SEC v. Chenery Corp. ( Chenery II) is generally taken as blanket authorization for agencies to make law through either adjudication or rulemaking if their organic statutes permit both modes.  We think this is an overreading of […]

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Rule 4 and Personal Jurisdiction

November 22, 2023

View PDF ARTICLE RULE 4 AND PERSONAL JURISDICTION Scott Dodson* State-court personal jurisdiction is regulated intensely by the Fourteenth Amendment’s Due Process Clause, which the Court has famously used to tie state-court personal jurisdiction to state borders.  Although the Fourteenth Amendment doesn’t apply to federal courts, the prevailing wisdom is that federal courts nevertheless are […]

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Is Tax Law Different? Unconstitutional Conditions, Religious Organizations, and Taxation

July 14, 2023

Lloyd Hitoshi Mayer, 98 Notre Dame L. Rev. Reflection (Special Issue) S1 (2023)

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Free Exercise Renewal and Conditions on Government Benefits

July 14, 2023

Thomas C. Berg, 98 Notre Dame L. Rev. Reflection (Special Issue) S20 (2023)

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