Notre Dame Law Review最新文献

{"title":"Why the Right to Elective Abortion Fails Casey's Own Interest-Balancing Methodology -- And Why It Matters","authors":"Stephen G. Gilles","doi":"10.2139/ssrn.2489652","DOIUrl":"https://doi.org/10.2139/ssrn.2489652","url":null,"abstract":"In Planned Parenthood v. Casey, the Supreme Court reaffirmed the right to elective abortion before viability, but abandoned Roe v. Wade’s characterization of it as a fundamental right that can be overcome only by a compelling state interest. Instead, Casey treats the right to elective abortion as grounded in an interest-balancing judgment that the woman’s liberty interest in terminating her pregnancy outweighs the state’s interest in protecting pre-viable fetal life. Remarkably, however, the Casey Court did not defend that interest-balancing judgment on the merits: indeed, three of the five Justices in the majority expressly declined to explain how they would have decided the interest-balancing question as an original matter. As a result, the majority was forced to rely on stare decisis and related considerations of \"institutional integrity.\" In this Article, I engage in the interest-balancing analysis Casey omitted, and argue that the right to elective abortion is unsound in Casey’s own terms. I assume the validity of Casey’s \"reasoned judgment\" approach to identifying unenumerated rights, including the interest-balancing methodology Casey used to reshape the right to elective abortion. I also assume that Casey (like Roe before it) is correct in characterizing the pre-viable fetus as \"potential human life\" rather than as an actual, normatively human being. These are obviously unfavorable premises on which to argue against a right to elective abortion. But that is precisely the point. My thesis is that even when an interest-balancing analysis is conducted on terms generally favorable to recognizing a constitutional right to elective abortion, the state’s interest in protecting the life of the pre-viable fetus prevails.I make that case through a close reading of Casey, careful descriptions and comparisons of the competing state and individual interests, and a concise analysis of the treatment of abortion – and of fetal life generally – in the Anglo-American legal tradition. As to precedent, I argue that a majority of the Justices in Casey believed that the state’s interest in protecting fetal life outweighs the woman’s interest in an elective abortion, and that their judgments should carry appreciable weight because they dictated Casey’s reliance on stare decisis. As to the competing interests, I acknowledge that the woman’s interest is entitled to great weight, but argue that the fetus’s inherent, self-directing \"potential\" to develop into a normatively human being should lead us to assign even greater weight to protecting its life – and its future. As for history, building on the scholarship of Joseph Dellapenna and others, I argue that the Anglo-American legal tradition has always protected the lives of fetuses once they could be known to be alive – initially at quickening, and throughout pregnancy once the basic facts of embryology were discovered in the 19th century. Precedent, reasoned evaluation of the competing interests, and tradition all","PeriodicalId":47176,"journal":{"name":"Notre Dame Law Review","volume":"38 1","pages":"5"},"PeriodicalIF":0.9,"publicationDate":"2016-01-18","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"76712168","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":"Religion and Social Coherentism","authors":"N. Tebbe","doi":"10.31228/osf.io/5qgak","DOIUrl":"https://doi.org/10.31228/osf.io/5qgak","url":null,"abstract":"Today, prominent academics are questioning the very possibility of a theory of free exercise or non-establishment. They argue that judgments in the area can only be conclusory or irrational. In contrast to such skeptics, this Essay argues that decisionmaking on questions of religious freedom can be morally justified. Two arguments constitute the Essay. Part I begins by acknowledging that skepticism has power. The skeptics rightly identify some inevitable indeterminacy, but they mistakenly argue that it necessarily signals decisionmaking that is irrational or unjustified. Their critique is especially striking because the skeptics’ prudential way of working on concrete problems actually shares much with the methods of others. Part II then argues that the best defense of religious freedom jurisprudence begins with an approach known as coherentism. In political philosophy, coherentism refers to the way legal actors compare new problems to existing principles and paradigms in order to identify solutions that are justified. The Essay then extracts and emphasizes the social aspects of this basic account. It contends that arguments about the meaning of the Constitution appropriately reflect social and political dynamics. The resulting approach, social coherentism, describes a powerful method for generating interpretations of the First Amendment that are justified, not conclusory. This matters at a moment when some defenders of religious traditionalism are suggesting that principled decisionmaking on questions of religious freedom is impossible, and therefore that such issues should be largely surrendered to political processes.","PeriodicalId":47176,"journal":{"name":"Notre Dame Law Review","volume":"1 1","pages":"363"},"PeriodicalIF":0.9,"publicationDate":"2016-01-06","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"78425058","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 Supreme Court's Quiet Revolution in Induced Patent Infringement","authors":"T. Holbrook","doi":"10.2139/SSRN.2653077","DOIUrl":"https://doi.org/10.2139/SSRN.2653077","url":null,"abstract":"The Supreme Court over the last decade or so has reengaged with patent law. While much attention has been paid to the Court’s reworking of what constitutes patent eligible subject matter and enhancing tools to combat “patent trolls,” what many have missed is the Court’s reworking of the contours of active inducement of patent infringement under 35 U.S.C. § 271(b). The Court has taken the same number of § 271(b) cases as subject matter eligibility cases – four. Yet this reworking has not garnered much attention in the literature. This article offers the first comprehensive assessment of the Court’s efforts to define active inducement. In so doing, it identifies the surprising significance of the Court’s most recent case, Commil USA, LLC v. Cisco Systems, Inc., where the Court held that a good faith belief on the part of the accused inducer cannot negate the mental state required for inducement – the intent to induce acts of infringement. In so doing, the Court moved away from its policy of encouraging challenges to patent validity as articulated in Lear, Inc. v. Adkins and its progeny. This step away from Lear is significant and surprising, particularly where critiques of the patent system suggest there are too many invalid patents creating issues for competition. This article critiques these aspects of Commil and then addresses lingering, unanswered questions. In particular, this article suggests that a good faith belief that the induced acts are not infringing, which remains as a defense, should only act as a shield against past damages and not against prospective relief such as injunctions or ongoing royalties. The courts so far have failed to appreciate this important temporal dynamic.","PeriodicalId":47176,"journal":{"name":"Notre Dame Law Review","volume":"27 1","pages":"1007"},"PeriodicalIF":0.9,"publicationDate":"2015-08-29","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"84361680","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 Fixation Thesis: The Role of Historical Fact in Original Meaning","authors":"Lawrence B. Solum","doi":"10.2139/SSRN.2559701","DOIUrl":"https://doi.org/10.2139/SSRN.2559701","url":null,"abstract":"The central debate in contemporary constitutional theory is the clash between originalists and living constitutionalists. Originalism is the view that the original meaning of the constitutional text should constrain or bind constitutional practice — paradigmatically, the decision of constitutional cases by the United States Supreme Court. Living constitutionalists contend that the content of constitutional law should evolve over time in response to changing values and circumstances. One of the central questions in this debate is over the question whether the meaning of the constitutional text is fixed or changeable. This essay makes the case for the Fixation Thesis — the claim that the linguistic meaning (or communicative content) of the constitutional text was fixed when each provision was framed and ratified. Although the Fixation Thesis is a basic assumption of almost every version of originalism or textualism, it has never been the explicit focus of an extended examination and defense. This essay remedies that lacuna by providing a precise formulation of the fixation thesis, making the affirmative case for fixation, and answering potential objections. The most important claim made by the essay is that the Fixation Thesis is entailed by our common sense understanding of how communication works. Communicative content is created by using conventional semantic meanings (fixed by linguistic practices at the time words are used) and context (which is fixed by the understanding of author and reader at the time a writing is created).The essay proceeds in five steps. Part One clarifies the Fixation Thesis by situating it in the content of contemporary debates about originalism. Part Two states the affirmative case for the fixation thesis and articulates several versions of the argument corresponding to different members of the originalist family of constitutional theories. Part Three provides additional clarification and answers objections. Part Four examines rival theories of constitutional meaning that deny fixation. Part Five explores two examples, “cruel and unusual punishment” and “privileges or immunities of citizens of the United States.”This is the final published version of the \"The Fixation Thesis\" and it replaces the earlier versions previously available at this location.","PeriodicalId":47176,"journal":{"name":"Notre Dame Law Review","volume":"10 1","pages":"1"},"PeriodicalIF":0.9,"publicationDate":"2015-08-05","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"87317260","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":"Assessing the Role of History in the Federal Courts Canon: A Word of Caution","authors":"A. Tyler","doi":"10.2139/SSRN.2652585","DOIUrl":"https://doi.org/10.2139/SSRN.2652585","url":null,"abstract":"One of the most pervasive and important debates in federal courts jurisprudence is over the role that history should play in interpreting Article III of the United States Constitution. To that end, federal courts jurisprudence is not altogether different from constitutional law jurisprudence more generally. But in the federal courts arena — more so than in the broader domain of constitutional law — originalism has always wielded tremendous influence over much of the judicial and scholarly thinking. It is for this reason that a distinct conversation about its role in the federal courts canon is appropriate.There is little question that in the field of federal courts, historical study has a great deal to contribute to modern debates. Indeed, historical study holds enormous potential to illuminate the founding purpose behind constitutional provisions, to unearth contemporary meanings associated with terms of art that were included in the document, and to uncover important evidence relating to historical practices and context, which in turn can shed light on the background understandings and assumptions that underlie constitutional text. But sometimes — if not often — the historical record on important questions of federal courts jurisprudence is absent, incomplete, or more complex than jurists and scholars tend to acknowledge. In keeping with this idea, one should never forget that certain aspects of the Constitution — including Article III and the structural framework within which it is situated — represented major innovations in their time. At the Founding, the concept of federalism — and with it the idea of two sets of courts, state and federal — was entirely new. Moreover, the separation of powers framework was, at the least, a transformation of the British model, if not a dramatic departure from it. Against this backdrop, it would be curious indeed if the details of the Article III power were fully settled from the outset. More likely, as Madison recognized early on, there would need to be a “liquidat[ion]” of meaning over time.Accordingly, I wish to offer a word of caution about making historical arguments in federal courts jurisprudence. Specifically, in undertaking historical inquiry in the field of federal courts, one must be careful about assigning certain data points from the Founding period determinative weight, rather than treating them as part of a larger conversation about the role of the judicial power in our constitutional framework. This is because in studying the early years following ratification of the Constitution, one tends to find both examples of major principles that remained the subject of disagreement as well as examples of early legislation and practices that today we would reject as plainly inconsistent with the constitutional separation of powers. As historian Jack Rakove has observed, the Founding period documents are the product of collective decisionmaking “whose outcomes necessarily reflected a bewildering array of","PeriodicalId":47176,"journal":{"name":"Notre Dame Law Review","volume":"19 1","pages":"1739-1752"},"PeriodicalIF":0.9,"publicationDate":"2015-07-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"77160261","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":"How to Kill a Zombie: Strategies for Dealing with the Aftermath of the Foreclosure Crisis","authors":"Judith L. Fox","doi":"10.2139/SSRN.2622507","DOIUrl":"https://doi.org/10.2139/SSRN.2622507","url":null,"abstract":"The foreclosure crisis which began in 2008 is old news; or is it? A lot of attention has been paid to the plight of homeowners struggling to save their homes from foreclosure. Legislative and regulatory changes have made it easier for homeowners to navigate the loss mitigation process. A significant number of people, however, did not try to save their homes. In fact, some actively tried unsuccessfully to give the homes back to their lender. These abandoned homes and abandoned foreclosures have become zombie mortgages. This is the legacy of this crisis.The existence of these homes is well documented and this paper does not seek to prove the problem. Instead, it analyzes some solutions. How can homeowners re-gain control of these homes in order to solve the urban plight problem the foreclosure crisis left in its wake? Current law does not anticipate a bank not seeking foreclosure. Should it? Courts are just beginning to grapple with the situation. No consistent patterns have emerged to deal with the issues. The mortgage industry has argued throughout this crisis that delays in judicial foreclosure are one of the causes of this phenomena. The data has failed to support this hypothesis. On the contrary, this paper argues that the industry used every legal maneuver possible to exacerbate the problem. Lenders have been allowed to enjoy the benefits of the mortgage, while avoiding the burdens. Changes in policy and perception are needed if we are ever to move pass the crisis.","PeriodicalId":47176,"journal":{"name":"Notre Dame Law Review","volume":"31 1","pages":""},"PeriodicalIF":0.9,"publicationDate":"2015-06-24","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"91229577","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 Bill of Rights as a Term of Art","authors":"Gerard N. Magliocca","doi":"10.2139/SSRN.2617811","DOIUrl":"https://doi.org/10.2139/SSRN.2617811","url":null,"abstract":"92 Notre Dame Law Review 231 (2016)","PeriodicalId":47176,"journal":{"name":"Notre Dame Law Review","volume":"86 1","pages":"5"},"PeriodicalIF":0.9,"publicationDate":"2015-06-12","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"83231062","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 Big Data Jury","authors":"A. Ferguson","doi":"10.2139/SSRN.2545383","DOIUrl":"https://doi.org/10.2139/SSRN.2545383","url":null,"abstract":"This article addresses the disruptive impact of big data technologies on jury selection. Jury selection requires personal information about potential jurors. Current selection practices, however, collect very little information about citizens, and litigants picking jury panels know even less. This data gap results in a jury selection system that: (1) fails to create a representative cross-section of the community; (2) encourages the discriminatory use of peremptory challenges; (3) results in an unacceptably high juror “no show” rate; and (4) disproportionately advantages those litigants who can afford to hire expensive jury consultants. Big data has the potential to remedy these existing limitations and inequities. Big data technologies offer a highly personalized, current, and targeted mechanism for locating citizens in a particular jurisdiction. Big data companies have been collecting public and quasi-public information about most American’s consumer, financial, health, political, and personal interests for years. For courts, the availability of real-time, personally targeted data provides the potential for algorithmically-precise representative jury venires and more efficient jury summonsing practices. This collected personal data also can be quite revealing about attitudes, inclinations, and interests. For litigants, the available information could provide a wealth of insights once only available from expensive jury consultants. Big data has the potential to democratize information about jurors leading to less discriminatory jury selection practices. Big data information, thus, has the potential to revolutionize how jury pools are selected and jury panels are picked. Yet, adoption of big data technology carries real risks. Traditional jury roles and values, including the continued legitimacy of the jury system, itself, are at stake. Increased big data collection of personal information involves an invasion of privacy that could result in significant backlash against jury service. Affirmative targeting of jurors also presents thorny constitutional issues, as considerations of race, gender, or ethnicity could run into equal protection problems. Equalizing the availability of big data information about jurors, and making it a part of the jury selection system, raises practical, theoretical, and constitutional dilemmas all of which are addressed in this article.","PeriodicalId":47176,"journal":{"name":"Notre Dame Law Review","volume":"14 1","pages":"935"},"PeriodicalIF":0.9,"publicationDate":"2015-03-13","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"91253223","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 Boundless Treaty Power Within a Bounded Constitution","authors":"S. Prakash","doi":"10.2139/SSRN.2857312","DOIUrl":"https://doi.org/10.2139/SSRN.2857312","url":null,"abstract":"I count myself among those who suppose that the Constitution contains no subject matter limits on the treaty power. More precisely, I believe that the original Constitution granted the President the power to make international agreements, with no particular constraints on the subjects they might touch. I reach this conclusion with a great deal of reluctance not because the case for this proposition is weak but because, as a matter of policy, I favor subject matter limits on the treaty power as a means of ensuring exclusive state authority over certain matters. Nonetheless, I have become convinced that the Constitution does not gratify my preferences. The treaty power is boundless in the sense that treaties of the United States can concern any subject, no matter how fanciful or seemingly absurd the matter might seem. Yet the treaty power is not completely without bounds. There likely are constraints on federal power that apply regardless of the sort of power (legislative, executive, judicial) being exercised. Such constraints would likewise apply to the treaty power as well. Part I canvasses possible subject matter limits on the treaty power. Part II discusses the Constitution’s text. Part III considers subject matter limits on treaties prior to the Constitution’s creation. Part IV examines how the Constitution constrains the treaty power that lacks subject matter bounds.","PeriodicalId":47176,"journal":{"name":"Notre Dame Law Review","volume":"16 1","pages":"1499"},"PeriodicalIF":0.9,"publicationDate":"2015-03-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"85646258","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":"A House Divided: When State and Lower Federal Courts Disagree on Federal Constitutional Rights","authors":"Wayne A. Logan","doi":"10.2139/SSRN.2548269","DOIUrl":"https://doi.org/10.2139/SSRN.2548269","url":null,"abstract":"Despite their many differences, Americans have long been bound by a shared sense of federal constitutional commonality. As this article demonstrates, however, federal constitutional rights do in fact often differ — even within individual states — as a result of state and lower federal court concurrent authority to interpret the Constitution and the lack of any requirement that they defer to one another’s positions. The article provides the first in-depth examination of intra-state, state-federal court conflicts on federal constitutional law and the problems that they create. Focusing on criminal procedure doctrine in particular, with its unique impact on individual liberty and privacy, the article highlights multiple instances in which state and lower federal courts disagree. As the article makes clear, creation of a “crazy quilt” of conflicting federal rights, which Justice Scalia has inveighed against more generally, generates an array of distinct and quite significant difficulties when localized. To date, however, the conflicts and their consequences have largely evaded the attention of commentators and, more importantly, often go unaddressed by the Supreme Court, which appears content to maintain its historically small plenary docket. In response, the article urges that Congress amend the federal certification provision, which since 1802 has allowed federal but not state courts to certify disputed questions to the Court for resolution. Allocating certification authority to state and federal courts alike will not only help ensure that the Court fulfills its role as arbiter of federal constitutional disputes. It will also help elevate state courts to their rightful place in the nation's constitutional order and allow for greater engagement with the nation’s “one supreme Court,” charged with overseeing the work of state and lower federal courts and ensuring federal constitutional consistency.","PeriodicalId":47176,"journal":{"name":"Notre Dame Law Review","volume":"27 1","pages":"235"},"PeriodicalIF":0.9,"publicationDate":"2015-01-12","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"82111332","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}