Notre Dame Law Review

Articles from Vol. 89, No. 3, January

Banking and the Social Contract
INTRODUCTION "[Government] support cannot go on forever, which underlines why the Social Contract for banks must be redrawn." (1) --Paul Tucker, Deputy Governor of the Bank of England Paul Tucker made a prescient comment while perhaps unintentionally...
Banking and the Social Contract
II. DEFINING THE SOCIAL CONTRACT This Part provides the justification for enforcing a social contract between banks and the state. The state needs banks to perform specific functions that enable trade and commerce. Banks, in turn, need both government...
Ex-Post Right, Ex-Ante Wrong
ABSTRACT Should a doctor be held liable under negligence law for harmful treatment she administered to a patient, if the treatment should have been considered negligent at the time it was administered, but is now considered reasonable at the time...
No Excuse: The Failure of the ICC's Article 31 "Duress" Definition
INTRODUCTION "Your Honour, I had to do this. If I had refused, I would have been killed together with the victims. When I refused, they told me: 'If you are sorry for them, stand up, line up with them and we will kill you too.'" (1) The introductory...
Protecting More Than the Front Page: Codifying a Reporter's Privilege for Digital and Citizen Journalists
"'The reporters who work for the Times in Washington have told me many of their sources are petrified even to return calls,' Jill Abramson, the executive editor of The New York Times, said ... on CBS's Face The Nation broadcast. 'It has a real practical...
The False Promise of Fiduciary Government
ABSTRACT This Article critiques the borrowing of private law concepts to develop doctrines of judicial review in public law. A rising chorus of scholars has argued for a fiduciary theory of government designed to constrain political discretion through...
The False Promise of Fiduciary Government
IV. THE PROBLEM OF FUNCTION To assess fiduciary government, it makes sense to consider the areas where federal lawmakers have experimented with it. In a few cases, they have imposed relatively narrow constraints on political corruption and naked...
The Jurisprudence of Union
ABSTRACT The primary goal of this Article is to demonstrate that the interest in national unity does important, independent work in the law of vertical federalism. We have long been accustomed to treating union as a constitutionally operative value...
The Jurisprudence of Union
III. UNDERSTANDING THE JURISPRUDENCE OF UNION The cases surveyed in Parts I and II demonstrate that the value of union does important, independent, work in shaping the law of vertical federalism. But it is safe to say--even with this account of...
The Rule of Law and the Judicial Function in the World Today
INTRODUCTION Good evening. (1) It is a pleasure to be here at the University of Notre Dame London Law Centre, and I am deeply honored to have been asked to speak from the "Judge James J. Clynes, Jr., Visiting Chair in the Ethics of Litigation within...
The Unitary Executive and the Plural Judiciary: On the Potential Virtues of Decentralized Judicial Power
Abstract The federal judiciary features a highly decentralized system of courts. The Supreme Court of the United States reviews only a few dozen cases each year. Meanwhile, regional U.S. courts of appeals operate independently of each other; district...
The Unitary Executive and the Plural Judiciary: On the Potential Virtues of Decentralized Judicial Power
III. RECONSIDERING THE COSTS AND BENEFITS OF DECENTRALIZING JUDICIAL POWER AND POTENTIAL CONSTITUTIONAL MEANS OF CREATING GREATER CONCENTRATIONS OF FEDERAL JUDICIAL POWER IN FEWER HANDS One should note that although the federal judicial system has...
Tyranny by Proxy: State Action and the Private Use of Deadly Force
INTRODUCTION Over the past decade there has been considerable public debate over the wisdom of the so-called "stand your ground" laws that allow for the use of deadly force in self-defense, even if the actor could safely retreat and avoid the threatening...
Weathering Wal-Mart
ABSTRACT In Wal-Mart Stores, Inc. v. Dukes, 131 S. Ct. 2531 (2011), the Supreme Court held that a proposed class of over a million women that had alleged pay and promotion discrimination against the nation's largest retailer could not be certified....