Notre Dame Law Review

Articles from Vol. 89, No. 2, December

Communicative Content and Legal Content
INTRODUCTION This Essay investigates a familiar set of questions about the relationship between legal texts (e.g., constitutions, statutes, opinions, orders, and contracts) and the content of the law (e.g., norms, rules, standards, doctrines, and...
Could You Use That in a Sentence, Please? the Intersection of Prosecutorial Ethics, Relevant Conduct Sentencing, and Criminal RICO Indictments
INTRODUCTION In the last fifty years, two developments transformed federal criminal law. First, Congress passed the Racketeer Influenced and Corrupt Organizations Act (RICO) (1) in 1970, allowing federal prosecutors to convict those who use enterprises...
Erie's Four Functions: Reframing Choice of Law in Federal Courts
ABSTRACT This Article seeks to mitigate decades of confusion about the Erie doctrine's purposes, justifications, and content. The Article shows that "Erie" is a misleading label encompassing four distinct components. Jumbling these components under...
Erie's Four Functions: Reframing Choice of Law in Federal Courts
III. ERIE'S IMPLEMENTATION: RETHINKING DOCTRINAL PUZZLES Parts I and II focused on Erie's functions; this Part focuses on its form. The morass of cases constituting Erie jurisprudence address several recurring problems that pose enduring puzzles....
Hierarchically Variable Deference to Agency Interpretations
ABSTRACT When courts review agency action, they typically accord agency decisions a degree of deference. As many courts and commentators have recognized, the law in this area is complicated because it features numerous standards of review, including...
Hierarchically Variable Deference to Agency Interpretations
II. POSSIBILITIES FOR INSTITUTIONAL. IMPLEMENTATION If the case for hierarchically variable deference is appealing in principle, could our judicial system implement it in practice? This Part presents some structural and doctrinal possibilities for...
Online Terms of Service: A Shield for First Amendment Scrutiny of Government Action
INTRODUCTION In Red Lion Broadcasting Co. v. FCC, (1) the Supreme Court of the United States declared that the purpose of the First Amendment of the United States Constitution is "to preserve an uninhibited marketplace of ideas in which truth will...
Participation as a Theory of Employment
ABSTRACT The concept of employment is an important legal category, not only for labor and employment law, but also for intellectual property law, torts, criminal law, and tax. The right-to-control test has dominated the debate over the definition...
Participation as a Theory of Employment
B. Defining "Scope of Employment" Unlike the competing definitions for the term "employee," the term "scope of employment" has not been the subject of various theoretical approaches. The term is not generally used in labor and employment statutes,...
Policing the Firm
ABSTRACT Criminal price fixing cartels are a serious problem for consumers. Cartels are hard both to find and punish. Research into other kinds of corporate wrongdoing suggests that enforcers should pay increased attention to incentives within the...
Policing the Firm
4. Industry-Level Factors The industry in which a firm operates may affect outcomes. There are factors exogenous to a particular firm that also may affect its predisposition to criminal behavior. Industry structure and poor industry performance...
Rehabilitating the Property Theory of Copyright's First Amendment Exemption
ABSTRACT A continuing controversy in copyright law is the exemption of copyright from First Amendment scrutiny. The Supreme Court has justified the exemption based on history and the intentions of the Framers, but this explanation is unpersuasive...
Rehabilitating the Property Theory of Copyright's First Amendment Exemption
C. Payoffs So what are the payoffs of applying the property theory to copyright? Initially, the payoffs are descriptive. As this Article has explained, the property theory provides a coherent framework within which to view the existing law. It explains...
The Politics of Statutory Interpretation
ABSTRACT In a new book, Reading Law: The Interpretation of Legal Texts, Justice Antonin Scalia and Bryan Garner describe and defend the textualist methodology for which Justice Scalia is famous. For Scalia and Garner, the normative appeal of textualism...
The Politics of Statutory Interpretation
E. Methodological Indeterminacy Finally, the claim that textualism works to constrict the scope of government regulation demands more faith in the determinacy of interpretive methodology in general, and textualism in particular, than is warranted....
Why Should We Care about an Agency's Special Insight?
INTRODUCTION In the modern federal administrative state, agencies enjoy judicial deference to their reasonable interpretations of ambiguous statutes and regulations. (1) In Chevron U.S.A. Inc. v. Natural Resource Defense Council, Inc., (2) the Supreme...