Notre Dame Law Review

Articles from Vol. 88, No. 2, December

Aggregation and Constitutional Rights
A. Individualized Constitutional Rights A series of constitutional rights remain highly individualized and therefore difficult to assert in damages class actions that require commonality and predominance. The Supreme Court individualizes rights...
Doctor's Orders: A New Prescription for ADHD Medication Abuse
"Th[is] stuff [Adderall] is like an ... anabolic steroid." --Mitch (1) In a society that never stops, discovering a quick fix grants one an immeasurable competitive edge whether it be in the academic or professional arena. The world of athletics...
In Defense of Rayburn House: Why the Supreme Court Should Recognize an Evidentiary Privilege of Nondisclosure in Its Speech or Debate Clause Jurisprudence
Article I of the United States Constitution includes the legislative privilege commonly known as the Speech or Debate Clause. The Clause reads that members of Congress: [S]hall in all Cases, except Treason, Felony, and Breach of the Peace, be...
Killing Them with Kindness: Examining "Consumer-Friendly" Arbitration Clauses after AT&T Mobility V. Concepcion
INTRODUCTION In AT&T Mobility v. Concepcion, the Supreme Court struck California's so-called "Discover Bank rule"--a judge-made rule providing that arbitration agreements attended by class action waivers are unenforceable if those agreements...
Profiles, Syndromes, and the Rule 405 Problem: Addressing a Form of Disguised Character under the Federal Rules of Evidence
INTRODUCTION Imagine that after years of meticulous research, a team of doctors, scientists, and criminologists publish a study of convicted murderers. The team has concluded that the vast majority of murderers have certain traits in common. They...
Regulatory Litigation in the European Union: Does the U.S. Class Action Have a New Analogue?
The United States has long embraced the concept of regulatory litigation, whereby individual litigants, often termed "private attorneys general," are allowed to enforce certain public laws as a matter of institutional design. Although several types...
Rethinking Anti-Aggregation Doctrine
This Article proposes a new approach to "anti-aggregation agreements "--contractual provisions that purport to prohibit parties from participating in class actions and other aggregate proceedings. Anti-aggregation agreements are permitted by Supreme...
Still Confronting the Consolidation Conundrum
"I think it unlikely that the class action will ever be taught to behave in accordance with the precepts of the traditional model of adjudication." --Professor Abram Chayes (1976) (1) "Class actions had their day in the sun and kind of petered...
The Malleability of Collective Litigation
In Wal-Mart v. Dukes, (1) Wal-Mart avoided class action because employment decisions were made by local supervisors. However, it was Wal-Mart who chose to delegate discretion; by doing so, it made class litigation less likely. Wal-Mart's choice of...
The Shortest Distance: Direct Filing and Choice of Law in Multidistrict Litigation
The amount of multidistrict litigation (MDL) in the federal courts is skyrocketing, particularly in the areas of mass torts and products liability. One significant reason for the explosion of MDL has been the difficulty of maintaining nationwide or...
The Way Forward after Wal-Mart
The Supreme Court's decision denying certification of a class action in Wal-Mart Stores, Inc. v. Dukes (1) elicited a strong dissent from Justice Ginsburg, (2) and widespread criticism in liberal circles, (3) but in several important respects, the...

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