Notre Dame Law Review最新文献

{"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}

{"title":"Courting Disaster: Climate Change and the Adjudication of Catastrophe","authors":"R. H. Weaver, Douglas A. Kysar","doi":"10.2139/SSRN.2965084","DOIUrl":"https://doi.org/10.2139/SSRN.2965084","url":null,"abstract":"Do we court disaster by stretching the bounds of judicial authority to address problems of massive scale and complexity? Or does disaster lie in refusing to engage the jurisgenerative potential of courts in a domain of such vast significance? This Article examines global climate change adjudication to shed light on these questions, focusing particularly on cases that seek to invoke the norm articulation and enforcement functions of courts. The attempt to configure climate-related harms within such substantive frameworks as tort and constitutional law is fraught with analytical and practical difficulties. Yet the exercise, we argue, is essential. Against the backdrop of a potentially existential threat, judges redeem the very possibility of law when they forthrightly confront the merits of climate lawsuits. Conversely, when they use weak preliminary and procedural maneuvers to avoid such confrontation, judges reinforce a sense of law’s disappearance into the maw of normative rupture.","PeriodicalId":47176,"journal":{"name":"Notre Dame Law Review","volume":"74 1","pages":"295"},"PeriodicalIF":0.9,"publicationDate":"2017-05-08","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"83739173","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":"Internet Safe Harbors and the Transformation of Copyright Law","authors":"Matthew J. Sag","doi":"10.2139/SSRN.2830184","DOIUrl":"https://doi.org/10.2139/SSRN.2830184","url":null,"abstract":"This Article shows how the substantive balance of copyright law has been overshadowed online by the system of intermediary safe harbors enacted as part of the Digital Millennium Copyright Act (“DMCA”) in 1998. The Internet safe harbors and the system of notice-and-takedown fundamentally changed the incentives of platforms, users, and rightsholders in relation to claims of copyright infringement. These different incentives interact to yield a functional balance of copyright online that diverges markedly from the experience of copyright law in traditional media environments. This article also explores a second divergence: the DMCA’s safe harbor system is being superseded by private agreements between rightsholders and large commercial Internet platforms made in the shadow of those safe harbors. These agreements relate to automatic copyright filtering systems, such as YouTube’s Content ID, that not only return platforms to their gatekeeping role, but encode that role in algorithms and software. The normative implications of these developments are contestable. Fair use and other axioms of copyright law still nominally apply online; but in practice, the safe harbors and private agreements made in the shadow of those safe harbors are now far more important determinants of online behavior than whether that conduct is, or is not, substantively in compliance with copyright law. The diminished relevance of substantive copyright law to online expression has benefits and costs that appear fundamentally incommensurable. Compared to the offline world, online platforms are typically more permissive of infringement, and more open to new and unexpected speech and new forms of cultural participation. However, speech on these platforms is also more vulnerable to over-reaching claims by rightsholders. There is no easy metric for comparing the value of non-infringing expression enabled by the safe harbors to that which has been unjustifiably suppressed by misuse of the notice-and-takedown system. Likewise, the harm that copyright infringement does to rightsholders is not easy to calculate, nor is it easy to weigh against the many benefits of the safe harbors. DMCA-plus agreements raise additional considerations. Automatic copyright enforcement systems have obvious advantages for both platforms and rightsholders; they may also allow platforms to be more hospitable to certain types of user content. However, automated enforcement systems may also place an undue burden on fair use and other forms of non-infringing speech. The design of copyright enforcement robots encodes a series of policy choices made by platforms and rightsholders and, as a result, subjects online speech and cultural participation to a new layer of private ordering and private control. In the future, private interests, not public policy will determine the conditions under which users get to participate in online platforms that adopt these systems. In a world where communication and expression is polic","PeriodicalId":47176,"journal":{"name":"Notre Dame Law Review","volume":"96 1","pages":"499"},"PeriodicalIF":0.9,"publicationDate":"2017-03-10","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"81898398","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":"Active Judging and Access to Justice","authors":"Anna E. Carpenter","doi":"10.2139/SSRN.2911214","DOIUrl":"https://doi.org/10.2139/SSRN.2911214","url":null,"abstract":"Active judging, where judges step away from the traditional, passive role to assist those without counsel, is a central feature of recent proposals aimed at solving the pro se crisis in America’s state civil courts. Despite growing support for active judging as an access to justice intervention, we know little, empirically, about how judges engage with pro se parties as a general matter, and even less about active judging. In response, this Article contributes new data and a new conceptual framework: the three dimensions of active judging. The study is based in a District of Columbia administrative court where most parties are pro se and active judging is permitted and encouraged. Using in-depth qualitative interviews with judges in this court, the study asks: Are the judges active? If so, how? Do views and practices vary across the judges? What factors shape and mediate those views and practices? Results reveal that all judges in the sample engage in at least one dimension of active judging, but judges’ views and practices vary in meaningful ways across the three dimensions, which include adjusting procedures; explaining law and process; and eliciting information. While all judges are willing to adjust procedures, they vary in whether and how they explain or elicit. These variations are based on judges’ different views about the appropriate role of a judge in pro se matters, views that are mediated by substantive law — burdens of proof, in particular. The variations exist though the judges draw on shared sources of guidance on active judging: appellate case law, a regulatory body, and one another, through peer reviews. This study suggests refinements to current thinking about active judging, offers new insights about the roles procedural rules and burdens of proof play in pro se litigation, and suggests consistency in active judging may require more substantial guidance than that available to judges in this court.","PeriodicalId":47176,"journal":{"name":"Notre Dame Law Review","volume":"134 1","pages":"647"},"PeriodicalIF":0.9,"publicationDate":"2017-02-03","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"86757634","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":"Corporate Criminal Minds","authors":"Mihailis E. Diamantis","doi":"10.2139/SSRN.2633627","DOIUrl":"https://doi.org/10.2139/SSRN.2633627","url":null,"abstract":"If they can commit the vast majority of crimes, corporations must have mental states. Lawmakers and scholars assume that factfinders need fundamentally different procedures for attributing mental states to corporations and individuals. But recent advances in cognitive science cast doubt on this assumption by revealing similarities in how people attribute mental states to groups and individuals.The standard doctrine — which attributes to corporations all and only the mental states of their employees — illustrates the difficulties of trying to find a wholly separate theory of corporate mens rea. At this stage in corporate history, the standard approach regularly leads to acquittals and convictions out of synch with any sensible notion of criminal justice. In some cases, corporations are acquitted even though it is clear some corporate malfeasance has occurred, as when responsibility is so scattered among an army of employees that no identifiable individual has done or thought anything objectionable. In other cases, the self-serving crimes of rogue employees may be attributed to otherwise upstanding corporate citizens, branding the whole organization criminal in the eyes of the law.This article draws on recent findings in cognitive science to develop a new, comprehensive approach to corporate mens rea. An elegant solution, and the one proposed by this article, would accept what people naturally do and build the requirements for mens rea around that understanding. Under this new approach, factfinders would be asked to treat corporate defendants much like natural person defendants. Rather than atomize corporations into individual employees, factfinders would view them holistically. Then, factfinders could do just what they do for natural people — in light of surrounding circumstances and other corporate acts, infer what mental state most likely accompanied the act at issue. Such a theory harmonizes with recent cognitive scientific findings on mental state and responsibility attribution, developments that corporate liability scholars have mostly ignored.","PeriodicalId":47176,"journal":{"name":"Notre Dame Law Review","volume":"25 1","pages":"2049"},"PeriodicalIF":0.9,"publicationDate":"2017-01-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"86086636","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":"In)valid Patents","authors":"Paul R. Gugliuzza","doi":"10.2139/SSRN.2692614","DOIUrl":"https://doi.org/10.2139/SSRN.2692614","url":null,"abstract":"Increasingly, accused infringers challenge a patent’s validity in two different forums: in litigation in federal court and in post-issuance review at the Patent and Trademark Office (PTO). These parallel proceedings have produced conflicting and controversial results. For example, in one recent case, a district court rejected a challenge to a patent’s validity and awarded millions of dollars in damages for infringement. The Federal Circuit initially affirmed those rulings, ending the litigation over the patent’s validity. In a subsequent appeal about royalties owed by the infringer, however, the Federal Circuit vacated the entire judgment — including the validity ruling and damages award it had previously affirmed — because the PTO had since decided that the patent was invalid. The Federal Circuit reasoned that only “final” court judgments are immune from the effects of PTO review and, because of the open issue about royalties, no final judgment existed when the PTO issued its conflicting decision on patent validity.The Federal Circuit’s stringent conception of finality, which this article terms the “absolute finality” rule, raises serious questions of judicial economy, fairness, and separation of powers. Among other things, it allows accused infringers multiple opportunities to defeat liability, permits an administrative agency to effectively nullify decisions of Article III courts, and incentivizes courts to abstain from hearing patent cases altogether, at least until the PTO reconsiders the patent’s validity. That said, some inefficiency or unfairness is inevitable when two different government bodies can evaluate the validity of the same patent, and the absolute finality rule, if nothing else, provides a relatively bright-line test. But it is not the only way to mediate disagreements between the courts and the PTO. This article, in addition to identifying, describing, and critiquing the absolute finality rule, explores several other options for providing greater certainty about patent validity.","PeriodicalId":47176,"journal":{"name":"Notre Dame Law Review","volume":"17 1","pages":"271"},"PeriodicalIF":0.9,"publicationDate":"2016-12-19","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"76222504","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 Courts and the People in a Democratic System: Against Federal Courts’ Exceptionalism","authors":"S. Grossi","doi":"10.2139/SSRN.2844320","DOIUrl":"https://doi.org/10.2139/SSRN.2844320","url":null,"abstract":"The law of federal procedure is on the Supreme Court’s docket for the October 2016 Term, with granted petitions addressing pleading sufficiency, standing, and jurisdiction. And, of course, the Advisory Committee on Rules of Civil Procedure continues its annual tinkering with the rules in an elusive effort to micromanage federal practice. That reality, coupled with recent exchanges with colleagues on procedural interpretation and reform, has prompted these reflections on the role of procedure in our democratic system. This short essay is intended to summarize those reflections, which are more extensively elaborated in my other works.","PeriodicalId":47176,"journal":{"name":"Notre Dame Law Review","volume":"98 1","pages":"106"},"PeriodicalIF":0.9,"publicationDate":"2016-09-27","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"74635532","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}