{"title":"1. The Medieval Beginnings of Our Lady’s Tumbler","authors":"\t\t\t\t(six-volume set)\t\t\tJ. Ziolkowski","doi":"10.11647/OBP.0132.01","DOIUrl":"https://doi.org/10.11647/OBP.0132.01","url":null,"abstract":"","PeriodicalId":47176,"journal":{"name":"Notre Dame Law Review","volume":"6 1","pages":""},"PeriodicalIF":0.9,"publicationDate":"2018-06-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"90969762","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":3,"RegionCategory":"社会学","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
{"title":"5. A Troupe of Sources and Analogues","authors":"\t\t\t\t(six-volume set)\t\t\tJ. Ziolkowski","doi":"10.11647/obp.0132.05","DOIUrl":"https://doi.org/10.11647/obp.0132.05","url":null,"abstract":"","PeriodicalId":47176,"journal":{"name":"Notre Dame Law Review","volume":"156 1","pages":""},"PeriodicalIF":0.9,"publicationDate":"2018-06-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"78695456","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":3,"RegionCategory":"社会学","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
{"title":"Securities Law in the Sixties: The Supreme Court, the Second Circuit, and the Triumph of Purpose Over Text","authors":"A. Pritchard, R. Thompson","doi":"10.2139/SSRN.3119969","DOIUrl":"https://doi.org/10.2139/SSRN.3119969","url":null,"abstract":"This articles analyzes the Supreme Court’s leading securities cases from 1962 to 1972—Capital Gains, J.I. Case v. Borak, Mills v. Electric Auto-Lite Co., Bankers Life, and Affiliated Ute—relying not just on the published opinions, but also the justices’ internal letters, memos, and conference notes. The Sixties Court did not simply apply the text as enacted by Congress, but instead invoked the securities laws’ purposes as a guide to interpretation. The Court became a partner of Congress in shaping the securities laws, rather than a mere agent. The interpretive space opened by the Court’s invocation of purpose allowed a dramatic expansion in the law of securities fraud. Encouraged by the high court’s dynamic statutory interpretation doctrine, the Second Circuit—the “Mother Court” for securities law—developed new causes of action that transformed both public and private enforcement of the securities laws. The insider trading prohibition found a new home in the flexible confines of Rule 10b-5. Implied private rights of action encouraged class actions to flourish. The growth of fiduciary duty in the 1960s created a blueprint for “federal corporation law.” The Supreme Court’s “counter-revolutionary” turn in the 1970s cut back on purposivism and the doctrinal innovations of the Sixties, but the approaches to insider trading and private rights of action survived, remaining pillars of securities regulation today.","PeriodicalId":47176,"journal":{"name":"Notre Dame Law Review","volume":"16 1","pages":"371"},"PeriodicalIF":0.9,"publicationDate":"2018-04-09","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"86671954","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":3,"RegionCategory":"社会学","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
{"title":"The State of the Death Penalty","authors":"A. Desai, Brandon L. Garrett","doi":"10.2139/SSRN.3124455","DOIUrl":"https://doi.org/10.2139/SSRN.3124455","url":null,"abstract":"The death penalty is in decline in America and most death penalty states do not regularly impose death sentences. In 2016 and 2017, states reached modern lows in imposed death sentences, with just thirty-one defendants sentenced to death in 2016 and thirty-nine in 2017, as compared with over three hundred per year in the 1990s. In 2016, only thirteen states imposed death sentences, and in 2017, fourteen did so, although thirty-one states retain the death penalty. What explains this remarkable and quite unexpected trend? In this Article, we present new analysis of state-level legislative changes that might have been expected to impact death sentences. First, life without parole (LWOP) statutes, now enacted in nearly every state, might have been expected to reduce death sentences because they give jurors a non-capital option at trial. Second, legislatures have moved, albeit at varying paces, to comply with the Supreme Court’s holding in Ring v. Arizona, which requires that the final decision in capital sentencing be made not by a judge, but by a jury. Third, states at different times have created state-wide public defender offices to represent capital defendants at trial. In addition, the decline in homicides and homicide rates could be expected to contribute to the decline in state-level death sentencing. We find that contrary to the expectations of many observers, changes in the law such as adoption of LWOP and jury sentencing, did not consistently or significantly impact death sentencing. The decline in homicides and homicide rates is correlated with changes in death sentencing at the state level. However, this Article finds that state provision of capital trial representation is far more strongly and robustly correlated with reduced death sentencing than these other factors. The findings bolster the argument that adequacy of counsel has greater implications for the administration of the death penalty than other legal factors. These findings also have implications beyond the death penalty and they underscore the importance of a structural understanding of the Sixth Amendment right to counsel in our system of criminal justice.","PeriodicalId":47176,"journal":{"name":"Notre Dame Law Review","volume":"20 1","pages":"1255"},"PeriodicalIF":0.9,"publicationDate":"2018-02-21","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"82139550","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":3,"RegionCategory":"社会学","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
{"title":"Due Process, Free Expression, and the Administrative State","authors":"Martin H. Redish, K. McCall","doi":"10.2139/SSRN.3122697","DOIUrl":"https://doi.org/10.2139/SSRN.3122697","url":null,"abstract":"The Supreme Court has long imposed on the judiciary a due process requirement of neutrality. Any temptation to the reasonable judge to decide a case other than on its merits is deemed unconstitutional, even in the absence of any showing of actual bias. The Court has been wisely willing to risk over-enforcement of the neutral adjudicator requirement, rather than under-enforcement. In the administrative context, however, the Court has imposed the exact opposite presumption: that absent a clear showing of bias, administrative adjudicators will be assumed to satisfy due process, even though they are part of the very agency instituting the adversary proceeding and will often have played a direct role in the institution of the proceeding. This Article argues that because of their built-in connections to the interests of the agencies for which they work, administrators should be deemed at least as inherently suspect, for due process purposes, as are judges. As in judicial proceedings, property or other constitutional rights may well be at stake, and due process protections are triggered equally in both contexts. The Article acknowledges the practical reality that many will consider it simply too late in the day to force so sweeping revisions in the administrative process, despite the serious constitutional problems it raises. Therefore as a second line of attack, the Article argues that a categorical exception be made to the blanket assumption of administrative adjudicatory neutrality for those cases challenging the constitutionality of agency action. In such situations, the administrators’ connection to their own agencies renders them inherently ill-equipped to neutrally adjudicate such challenges. This is particularly so, the Article argues, when First Amendment rights of free expression are implicated. Because of their simultaneous importance and fragility, the Article argues that plausible claims that proposed agency adjudicatory action will contravene a regulated party’s First Amendment rights should be allowed to reach the courts prior to the conduct of the administrative proceeding.","PeriodicalId":47176,"journal":{"name":"Notre Dame Law Review","volume":"19 1","pages":"297-328"},"PeriodicalIF":0.9,"publicationDate":"2018-02-12","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"89582725","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":3,"RegionCategory":"社会学","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
S. Calabresi, James Lindgren, Hannah M. Begley, Kathryn L. Dore, Sarah E. Agudo
{"title":"Individual Rights under State Constitutions in 2018: What Rights Are Deeply Rooted in a Modern-Day Consensus of the States?","authors":"S. Calabresi, James Lindgren, Hannah M. Begley, Kathryn L. Dore, Sarah E. Agudo","doi":"10.2139/SSRN.3120522","DOIUrl":"https://doi.org/10.2139/SSRN.3120522","url":null,"abstract":"This law review article describes what individual rights are protected under state constitutional law today in 2018; in 1868 when the Fourteenth Amendment was ratified; and in 1791, when the federal Bill of Rights was ratified. We seek to offer a picture over time as to what rights have gone into style and what rights have fallen out of style over the last 227 years. State constitutions are much easier to amend than is the federal constitution, so they provide a good sociological vantage point from which to assess rights. Moreover, since most originalists think that rights should be deeply rooted in history and tradition, as the U.S. Supreme Court held in Washington v. Glucksberg, the 1791 and 1868 data ought to be of interest to them. In contrast, the 2018 data should be of interest to advocates of a living constitution.","PeriodicalId":47176,"journal":{"name":"Notre Dame Law Review","volume":"94 1","pages":"49-153"},"PeriodicalIF":0.9,"publicationDate":"2018-02-08","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"88958075","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":3,"RegionCategory":"社会学","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
{"title":"2016 Trademark Year in Review","authors":"Mark Mckenna, S. Niemann","doi":"10.2139/SSRN.2886627","DOIUrl":"https://doi.org/10.2139/SSRN.2886627","url":null,"abstract":"This brief essay reviews some of the most significant developments in trademark law during the past year. In most cases we have interpreted “year” fairly liberally, particularly to highlight some longer-term trends. We focus on six areas: (1) the constitutionality of § 2(a) of the Lanham Act; (2) the Fourth Circuit’s Belmora decision and the availability of § 43(a) claims when the plaintiff has not used a mark in the United States; (3) the effect of BB (4) injunctive relief and the presumption of irreparable harm; (5) nominative fair use; and (6) initial interest confusion.","PeriodicalId":47176,"journal":{"name":"Notre Dame Law Review","volume":"9 1","pages":"112"},"PeriodicalIF":0.9,"publicationDate":"2017-07-25","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"86139677","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":3,"RegionCategory":"社会学","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
{"title":"Reviewability and the 'Law of Rules': An Essay in Honor of Justice Scalia","authors":"Adrian Vermeule","doi":"10.2139/SSRN.3004071","DOIUrl":"https://doi.org/10.2139/SSRN.3004071","url":null,"abstract":"INTRODUCTION In Washington v. Trump, (1) the Ninth Circuit decision on the Administration's executive order on immigration, (2) a critical moment occurred when the panel had to explain why the order was reviewable at all. Precedents like Kleindienst v. Mandel (3) had said that \"when the Executive exercises [immigration authority] on the basis of a facially legitimate and bona fide reason, the courts will [not] look behind the exercise of that discretion.\" (4) The panel's response was to invoke an important distinction between the reviewability of general rules, on the one hand, and the reviewability of specific applications, on the other: [T]he Mandel standard applies to lawsuits challenging an executive branch official's decision to issue or deny an individual visa based on the application of a congressionally enumerated standard to the particular facts presented by that visa application. The present case, by contrast, is not about the application of a specifically enumerated congressional policy to the particular facts presented in an individual visa application. Rather, the States are challenging the President's promulgation of sweeping immigration policy. Such exercises of policymaking authority at the highest levels of the political branches are plainly not subject to the Mandel standard. (5) As we will see, this conception of reviewability (6)--keyed to a distinction between general policies or rules and specific applications, with the former subject to review even if the latter would not be--is one that Justice Scalia wrestled with throughout his reviewability jurisprudence. Yet it is more or less directly the opposite of Justice Scalia's own conception. Justice Scalia developed a consistent approach to questions of reviewability: roughly, the idea that \"general programs\" and \"general policies\" are to be excluded from judicial review, and even general and legally binding agency rules may or may not be reviewable before enforcement. On this approach, the proper business of courts is to review specific applications of agency rules to particular parties. Notice that there are actually three possible subjects of review in play here: nonbinding policies and rules (such as \"interpretive\" rules); binding general rules (\"legislative rules\"); and applications. More on this shortly. For now, the focus is on the distinction between review of general and specific agency action, whether that action is embodied in a legally binding rule or in a nonbinding policy. The approach featured in Washington v. Trump, by contrast, was propounded in several opinions by Justice John Paul Stevens. On that view, agencies should be more afforded more, not less, discretion to apply policies or rules in particular cases, whereas the proper business of the judiciary is to review the general legality of overall programs, policies, and rules. The Scalia view and the Stevens view obviously differ on the proper role of courts in an overall system of administrative law. For J","PeriodicalId":47176,"journal":{"name":"Notre Dame Law Review","volume":"13 1","pages":"2163"},"PeriodicalIF":0.9,"publicationDate":"2017-07-17","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"78202216","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":3,"RegionCategory":"社会学","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
{"title":"The Limits of Reading Law in the Affordable Care Act Cases","authors":"Kevin C. Walsh","doi":"10.2139/SSRN.2985014","DOIUrl":"https://doi.org/10.2139/SSRN.2985014","url":null,"abstract":"INTRODUCTION One of the most highly lauded legacies of Justice Scalia's decades-long tenure on the Supreme Court was his leadership of a movement to tether statutory interpretation more closely to statutory text. His dissents in the Affordable Care Act cases--National Federation of Independent Business v. Sebelius (1) and King v. Bunnell (2)--demonstrate both the nature and the limits of his success in that effort. These were two legal challenges, one constitutional and the other statutory, that threatened to bring down President Obama's signature legislative achievement, the Patient Protection and Affordable Care Act. Both times the Court swerved away from a direct collision. And both times Justice Scalia accused the Court majority--led by Chief Justice Roberts--of twisting the statutory text. (3) Justice Scalia was right about the twistifications. But that does not mean he was right to condemn them both. Sometimes the governing law of interpretation calls on judges to adopt an interpretation other than the one that most straightforwardly follows from the application of standard interpretive conventions to statutory text. (4) NFIB v. Sebelius was just such a case. The Supreme Court had to choose between two interpretations of a provision regarding mandatory insurance coverage. (5) The most straightforward interpretation--as a requirement to have the right kind of insurance, backed up by a financial penalty for noncompliance--would have resulted in a holding of unconstitutionality. (6) A textually inferior interpretation--as a tax on not having the requisite insurance--would have avoided such a holding. (7) Under the Court's precedent governing that kind of choice, the Court was required to choose the constitutionally salvific interpretation--even over the textually superior one--as long as it was \"reasonable\" and \"fairly possible\" to read it that way. (8) And it was. In King v. Burwell, by contrast, the law of interpretation did not authorize the Justices to opt for the textually inferior interpretation. Chief Justice Roberts found ambiguity in unambiguous statutory text and then resolved that ambiguity by reference to an interpretation that would make the \"legislative plan\" work. (9) Because Chief Justice Roberts avoided explicit reference to legislative purpose and legislative history--two hallmarks of the \"bad old days\" before the rise of Scalian textualism (10)--he was constrained to generate ambiguity through textual analysis. And it is precisely because of this constraint that careful opinion readers can see where his reasoning comes up short. This is a testimony to Justice Scalia's success in leading the Court away from a more purposive approach toward a more textualist approach. But Justice Scalia and his textualism were still losers in King. Scalia's need to dissent in that case shows not only the limits of textualism's ascendancy, but also the need for a sounder jurisprudential footing for textualist interpretive practice. The interpre","PeriodicalId":47176,"journal":{"name":"Notre Dame Law Review","volume":"50 1","pages":"1997"},"PeriodicalIF":0.9,"publicationDate":"2017-06-12","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"75608980","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":3,"RegionCategory":"社会学","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}