Considerations

ARTICLES – Standing And Originalism After Laufer v. Arpan

Julian Gregorio – J.D. Candidate, Notre Dame Law School ’23

As of late, Supreme Court standing doctrine has become contested, including among originalists. The Eleventh Circuit has jumped to the forefront of that standing-and-originalism debate, especially after Justice Thomas recently cited originalist Judge Kevin Newsom’s Sierra v. Hallandale Beach concurrence.

In Sierra, an Americans with Disabilities Act (ADA) case, the Eleventh Circuit had held that a deaf plaintiff suffered a concrete injury, albeit intangible and “stigmatic,” when he couldn’t hear and thus couldn’t understand videos that a city posted on its official website without any closed captioning. But the Supreme Court has since dealt with standing and original meaning in TransUnion LLC v. Ramirez. There, it held—over Justice Thomas’s dissent— that when statutes provide the basis for injury in fact (as opposed to “traditional” common-law bases such as physical or monetary harms), standing requires separate and individual concrete injury beyond a “bare procedural violation” of the act. Thus, while Justice Thomas’s dissent vindicated several of Judge Newsom’s observations in Sierra, the TransUnion Court seemed to go a different direction.

ARTICLES – A Potential Rebirth of the Primary role of Territorial Limitations on State Court Jurisdiction: Mallory v. Norfolk Southern

Jack Fitzhenry – Legal Fellow, Edward Meese III Center for Legal and Judicial Studies, Heritage Foundation

Civil procedure, the rules for litigating a legal claim, scarcely qualifies as a stimulating topic to anyone. Its dryness is repellant to most non-lawyers, while attorneys sardonically remember it as a substitute for Ambien. (First-year law students spend an entire semester on it, hoping to reduce their time in purgatory). But, despite its insipid nature, civ pro can often tee up important Mallory v. Norfolk Southern Railway Co, a civ pro case argued before the U.S. Supreme Court on November 8th, is one such case.

It concerns a classic of the civ pro genre: personal jurisdiction, the issue of whether a state’s courts can exercise authority over a non-resident defendant. The case has much to offer both lay and lawyerly audiences: issues of state sovereignty, business autonomy, and the distinctions between natural and corporate citizens. What’s more, the case may clarify, if not challenge, the Court’s willingness to adhere to the Constitution’s original meaning even when that creates tensions with longstanding judicial doctrines.

ARTICLES – How a Person of Faith Can Address Imposter Syndrome in Law School

David A. Grenardo – Professor of Law & Associate Director of the Holloran Center for Ethical Leadership in the Professions, University of St. Thomas School of Law

Imposter syndrome, which psychiatrists Pauline Rose Clance and Suzanne Imes initially identified in 1978 as imposter phenomenon, makes people feel as if they are frauds and others will soon find out that they do not belong.

Imposter syndrome typically affects high achievers, which include law students and lawyers. Prominent individuals who have admitted to suffering from imposter syndrome include Maya Angelou, Michelle Obama, United States Supreme Court Justice Sonia Sotomayor, Tom Hanks, and Serena Williams. 61.8% of students at a law school responded in a survey that they “had frequent or intense imposter syndrome experiences”—the law school surveyed was Harvard Law School.

Imposter syndrome permeates law school and the legal profession. It affects men, women, first generation law students, people of color, and other historically underrepresented individuals such as people in the LGBTQIA+ community. Law schools can provide resources and tools for law students to address imposter syndrome, but a person of faith can approach imposter syndrome in unique ways. This Article sets forth the various ways a law student of faith can confront imposter syndrome.

ARTICLES – Gnostic Criminal Justice

Aaron J. Walayat – Associate Attorney, Tucker Arensberg, P.C. & Adjunct Professor of Law, University of Pittsburgh School of Law

Professor Walayat assesses the ethical implications of the “Alford Plea,” wherein a defendant in a criminal case may plead guilty while maintaining their innocence, generally for “the opportunity to limit the possible penalty” and thus to make an economically “rational” decision. Walayat asserts a view of the criminal justice system as being beyond mere economic decision making and efficient outcomes, instead having a responsibility to view the individuals within the system as full persons who are supposed to be changed by that system. A purely efficient view, he argues, cannot affect that kind of justice.

ARTICLES – Reorienting the Legal Academy

Robert E. Ranney – Judicial Law Clerk, United States District Court for the Eastern District of Kentucky & Assistant Director, Ordered Liberty Program – University of Louisville

The American legal academy is in a state of disarray. Ideological diversity is frowned upon. Neutrality is no longer a hallmark of law schools. Instead, administrative bureaucrats opt to impose “ideological brands” on their schools to “help fundraising and student recruitment.” Often, the ideological brand is a progressive one. This makes sense, as only the progressives emphatically work towards advancing an “unacknowledged vision of the good[.]” And the progressives are correct to do so—there is a good that the law must grasp. However, paradoxically, progressives advance substantive arguments on the morality of law while remaining voluntarily bound by the tight grip of legal positivism. Originalists laudably attempt to correct the progressives’ false notion of the good, but do so by arguing that “the law can be identified independent of morality”—they are dead wrong. Law can only flourish when it incorporates “genuine concern for the common good at ever higher levels— individual, family, city, nation, and commonwealth of nations.” This is the conservative position, and it is one that conservatives must return to. More importantly, it is a real account of the law. For the American legal academy to recover, both progressives and originalists must reject their tender embrace of legal positivism. The legal academy needs natural law.

ARTICLES – Negligence and Psychopathy: An Unattended Tort Dilemma

Joseph J. Kim – J.D. Candidate, Notre Dame Law School ’23

The Yorubas, an indigenous Nigerian tribe, use the word aranakan to describe “a person who always goes his own way regardless of others, who is uncooperative, full of malice, and bullheaded.” The Inuits use the word kunlangeta to describe “someone whose ‘mind knows what to do but he does not do it’ . . . repeatedly lies, steals, cheats, and rapes.” These words are concepts that are paralleled in modern clinical psychology by a disorder called psychopathy. “The construct of psychopathy is understood generically as a type of personality disorder characterized . . . by the presence of behaviors that conflict with the social, moral, or legal norms of society.”

Psychopaths are members of society as much as anyone else and therefore are subject to legal rights and duties in their everyday lives. A discussion involving legal rights and duties necessarily involves moral agency, or “the adoption of standards of conduct against which people monitor and evaluate their own conduct.” A psychopath has a complicated status as a moral agent while engaging with the rest of society because psychopathy impairs not only the capacity to engage in moral reasoning but also the capacity to act morally even if external standards of right and wrong conduct are clearly understood in advance. Simply stated, not only do psychopaths struggle with understanding right and wrong, but they are utterly incapable of caring.