Notre Dame Law Review

Articles from Vol. 89, No. 5, May

Dropping the Ball: The Failure of the NCAA to Address Concussions in College Football
"Football isn't a contact sport--it's a collision sport. Dancing is a contact sport."--Duffy Daugherty, head football coach at Michigan State University, 1954-1972 (1) INTRODUCTION On August 22, 2011 Derek Sheely, a starting fullback on the football...
From Progressivism to Modern Liberalism: Louis D. Brandeis as a Transitional Figure in Constitutional Law
INTRODUCTION Many early-twentieth-century Progressives (1) believed that the Constitution reflected anachronistic liberal individualism and natural rights ideology. (2) Occasional judicial decisions that thwarted their favored reforms provoked them...
Intragenerational Constitutional Overruling
INTRODUCTION The oral argument over affirmative action in Fisher v. University of Texas (1) began with a question of Fisher's standing, but after a few brief exchanges, Justice Stephen Breyer changed the subject to the potential overruling of Grutter...
Municipal Bankruptcy and Public Pensions: Detroit's Eligibility for Chapter 9 Relief and Legal Restraints on the City's Actions as a Debtor
"I'm a proponent of cities going bankrupt. Bridgeport will show the way. It's the only way out." (1) --Richard M. Daley, Former Mayor of Chicago INTRODUCTION On July 18, 2013, after decades of steady economic decline, the City of Detroit,...
Our Anchor for 225 Years and Counting: The Enduring Significance of the Precise Text of the Constitution
Thank you so much for inviting me to Notre Dame. As a Catholic, I appreciate what this university stands for--a mission of training people, to educate students to help others of all faiths and backgrounds. As a Judge, I appreciate what this esteemed...
Suing Foreign Officials in U.S. Courts: Upholding Separation of Powers by Limiting Judicial Abrogation of Immunity
INTRODUCTION As human rights atrocities continue to shock our world media, the international community is calling for ways to hold accountable the government actors who commit egregious acts of terror against their people. (1) Advocates have turned...
The "Constitution in Exile" as a Problem for Legal Theory
ABSTRACT How does one defend a constitutional theory that's out of the mainstream? Critics of originalism, for example, have described it as a nefarious "Constitution in Exile, " a plot to impose abandoned rules on the unsuspecting public. This...
The Cost of Judicial Error: Stare Decisis and the Role of Normative Theory
Changes in constitutional doctrine impose costs in terms of the values traditionally associated with the rule of law. Stability, predictability, and public confidence in the presumptive legitimacy of current law all can be undermined by departures...
The Decline of Legal Classicism and the Evolution of New Deal Constitutionalism
INTRODUCTION The constitutional revolution of the New Deal era was neither swift nor the calculated response of embattled jurists to the external pressures of politics and culture. More evolutionary than revolutionary, the transformation of the...
The Former Clerks Who Nearly Killed Judicial Restraint
ABSTRACT Richard Posner wrote that the theory of judicial restraint is dead and that the liberal decisions of the Warren Court killed it. Posner should have placed some of the blame on himself and other former Warren Court and early Burger Court...
The Jurisprudence of the Hughes Court: The Recent Literature
Franklin Roosevelt and the Great Constitutional War, Marian C. McKenna (Fordham University Press 2002); The Hughes Court: Justices, Rulings, and Legacy, Michael E. Parrish (ABA-CLIO 2002); The Chief Justiceship of Charles Evans Hughes, 1930-1941, William...
The Jurisprudence of the Hughes Court: The Recent Literature
C. Ross Professor Ross's account of the development of constitutional doctrine under Hughes is for the most part well informed, careful, and judicious. He recognizes that "[r]ather than an instinctive bias in opposition to business regulation, the...
The Jurisprudence of the Hughes Court: The Recent Literature
D. Parrish Professor Parrish distances himself from "traditional accounts" that "emphasize the importance of 1937 and argue that the Hughes Court executed a sudden constitutional revolution, an abrupt departure from earlier rulings when it came...
The Least Activist Supreme Court in History? the Roberts Court and the Exercise of Judicial Review
ABSTRACT Not too many years ago, scholars could reasonably speak of the U.S. Supreme Court as being among the most activist in American history. Both empirical and normative scholarship was driven by the sense of a Court that was aggressive in the...
The Paths to Griswold
INTRODUCTION Critics have long viewed Griswold v. Connecticut (1) as "in many ways a typical decision of the Warren Court." (2) But Griswold was hardly a "typical" Warren Court decision. The doctrinal themes with which the Warren Court is most closely...
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