Celebrating the 125th Anniversary of the Notre Dame Law School

This year marks the Notre Dame Law School\u27s 125th year of continuous operation. This issue of the Notre Dame Law Review is our contribution to the anniversary celebration. We asked a few of the Law School\u27s many distinguished graduates to contribute their reflections on legal education at Notre Dame. They are Robert Michael Greene, Class of 1969; Peter T. King, Class of 1968; Patrick McCartan, Class of 1959; and Hon. Martha Vazquez, Class of 1978. We are grateful as well to Hon. Paul V. Niemeyer, Class of 1966, who prepared an essay for the issue

Federalism Doctrines and Abortion Cases: A Response to Professor Fallon

This Essay is a response to Professor Richard Fallon\u27s article, If Roe Were Overruled: Abortion and the Constitution in a Post-Roe World. In that article, Professor Fallon argues that if the Supreme Court were to overrule Roe v. Wade, courts might well remain in the abortion-umpiring business. This Essay proposes a refinement on that analysis. It argues that in a post-Roe world courts would not necessarily subject questions involving abortion to the same kind of constitutional analysis in which the Court has engaged in Roe and its progeny, that is, balancing a state\u27s interest in protecting life against a pregnant woman\u27s interest in choosing to terminate a pregnancy. Though questions of state power to regulate abortion might well implicate the legitimacy of state interests to regulate abortion in certain ways, questions of federal power to regulate abortion might more implicate structural constitutional concerns that transcend the perceived worth of particular regulatory outcomes. Thus, whether post-Roe the Court would remain involved in resolving the legitimacy of governmental interests in regulating abortion may depend on what kind of federal or state regulation emerged in a post-Roe world

Sosa, Federal Question Jurisdiction, and Historical Fidelity

In his paper International Human Rights in American Courts, Judge Fletcher concludes that Sosa v. Alvarez-Machain “has left us with more questions than answers.” Sosa attempted to adapt certain principles belonging to the general law to a post-Erie positivistic conception of common law while maintaining fidelity to certain historical expectations. “[I]t would be unreasonable,” the Court thought, “to assume that the First Congress would have expected federal courts to lose all capacity to recognize enforceable international norms simply because the common law might lose some metaphysical cachet on the road to modern realism.” The Court was unwilling, however, out of concern for assuming a more expansive judicial role than the Alien Tort Statute (ATS) justified, to hold that federal courts may hear any claim for a violation of customary international law. In an effort to maintain fidelity to the First Congress\u27s expectations, the Court held in Sosa “that federal courts should not recognize private claims under federal common law for violations of any international law norm with less definite content and acceptance among civilized nations than the historical paradigms familiar when [the ATS] was enacted” specifically, “violation of safe conducts, infringement of the rights of ambassadors, and piracy.” I will discuss here a problem that Judge Fletcher rightly observes Sosa did not discuss–“the subject matter jurisdiction problem.” In particular, what constitutional power does Congress have to authorize federal court jurisdiction over claims based on customary international law

State Courts and the Interpretation of Federal Statutes

Scholars have long debated the separation of powers question of what judicial power federal courts have under Article III of the Constitution in the enterprise of interpreting federal statutes. Specifically, scholars have debated whether, in light of Founding-era English and state court judicial practice, the judicial power of the United States should be understood as a power to interpret statutes dynamically or as faithful agents of Congress. This Article argues that the question of how courts should interpret federal statutes is one not only of separation of powers but of federalism as well. State courts have a vital and often independent role in the American constitutional structure in interpreting federal statutes. In the late eighteenth and early nineteenth centuries, state courts, though they interpreted state statutes equitably in certain cases, interpreted federal statutes only in ways designed to implement, as far as possible, the directives of Congress. This Article describes the practice of state courts in interpreting federal statutes during the first few decades after ratification, explains why state judges may have felt constrained not to interpret federal statutes equitably, and suggests possible implications of this analysis for the question of how federal courts should interpret federal statutes. statutory interpretation, federalism, separation of powers, federal courts, state courts, supremacy claus

Re-Examining Customary International Law and the Federal Courts: An Introduction

Legal scholars have debated intensely the role of customary international law in the American federal system. The debate involves serious questions surrounding the United States\u27s constitutional structure, foreign relations, and human rights. Despite an impressive body of scholarship, the debate has stood at an impasse in recent years, without either side garnering a consensus. This symposium–Re-examining Customary International Law and the Federal Courts–aspires to help advance the debate over the status of customary international law in the federal courts. The symposium received thoughtful and constructive contributions from Professors Curtis A. Bradley, Bradford R. Clark, Andrew Kent, Carlos M. Vizquez, and Ingrid Wuerth. The authors presented early versions of their papers at the annual meeting of the Federal Courts Section of the American Association of Law Schools in New Orleans, Louisiana on January 7, 2010. The papers address the general status of customary international law in the federal system and, more specifically, the scope and effect of the Alien Tort Statute (ATS), which confers jurisdiction upon federal courts to hear an important category of cases involving customary international law

Promises, Trust, and Contract Law

The need for individuals to be able to trust that promises will be performed is central to justifying a law that renders certain promises enforceable. This Article argues that the legal enforcement of certain promises to meet this need does not necessarily diminish the personal relationships of trust in which such promises are made, as has been argued. Rather, this Article argues, the making and performance of legally enforceable promises can assist individuals in building relationships of trust, as it assists them in the pursuit of myriad goods

Congressional Power and State Court Jurisdiction

Federal laws that regulate state institutions give rise to what the Supreme Court has described as the oldest question of constitutional law. In recent years, the Court has confronted questions of congressional power to regulate state legislatures and executives, but has not directly confronted any question of congressional power to regulate state courts. Since the Founding, questions of congressional power to regulate state court jurisdiction of Article III cases have arisen - most notably, congressional power to assign jurisdiction of federal criminal cases to state courts. Today, significant questions of congressional power to regulate state court jurisdiction over non-Article III cases are arising for the first time in American history. This Article explains the framework within which members of the Founding generation considered questions of congressional power over state court jurisdiction. Rather than claim that there was any consensus on the answers to specific questions of congressional power, it describes the framework within which members of the Founding generation debated these questions. Specifically, they premised arguments about congressional power over state court jurisdiction upon either general law principles of jurisdiction or constitutional provisions asserted to override the general law. To the extent that historical understandings of federal power have animated much of the Court\u27s recent federalism jurisprudence, the framework that this Article describes largely remains workable today with respect to questions of congressional power over state court jurisdiction in both Article III and non-Article III cases. The Article further provides a word of caution about eschewing such a historical analysis in favor of exclusive reliance upon the political safeguards of federalism to protect state sovereignty interests: in the case of congressional regulation of state court jurisdiction, exclusive reliance on the political safeguards is problematic both historically and functionally