Law Commons^™

Changemakers: Juris Doctorate: Saad Ahmad: Immigration Lawyer Saad Ahmad L'00 Shows That Appellate Practice Isn't Just For Large Firms, Roger Williams University School Of Law

Life of the Law School (1993- )

No abstract provided.

Procedural Law, The Supreme Court, And The Erosion Of Private Rights Enforcement, Suzette M. Malveaux

Publications

No abstract provided.

Brief Of Amici Curiae Employment Law Professors In Support Of Respondents, Sandra F. Sperino

Faculty Articles and Other Publications

This Court should not interpret section 1981 to require proof of but-for causation, given that statute’s text, history, and purpose. Although Comcast invokes the canon of statutory construction that Congress intends statutory terms to have their settled common-law meaning, that canon does not apply here. Section 1981 has no statutory text that reflects a common-law understanding of causation. Indeed, in 1866, when Congress enacted the predecessor to section 1981, there was no well-settled common law of tort at all. Rather, just as courts have read 42 U.S.C. § 1982, which shares common text, history and purpose, this Court should read …

The Federal Circuit As An Institution, Ryan G. Vacca

Law Faculty Scholarship

The Court of Appeals for the Federal Circuit is a unique institution. Unlike other circuit courts, the Federal Circuit’s jurisdiction is bound by subject area rather than geography, and it was created to address a unique set of problems specific to patent law. These characteristics have affected its institutional development and made the court one of the most frequently studied appellate courts. This chapter examines this development and describes the evolving qualities that have helped the Federal Circuit distinguish itself, for better or worse, as an institution.

This chapter begins with an overview of the concerns existing before creation of …

Rights And Retrenchment In The Trump Era, Stephen B. Burbank, Sean Farhang

All Faculty Scholarship

Our aim in this essay is to leverage archival research, data and theoretical perspectives presented in our book, Rights and Retrenchment: The Counterrevolution against Federal Litigation, as a means to illuminate the prospects for retrenchment in the current political landscape. We follow the scheme of the book by separately considering the prospects for federal litigation retrenchment in three lawmaking sites: Congress, federal court rulemaking under the Rules Enabling Act, and the Supreme Court. Although pertinent data on current retrenchment initiatives are limited, our historical data and comparative institutional perspectives should afford a basis for informed prediction. Of course, little in …

“Encroachments And Oppressions”: The Corporatization Of Procedure And The Decline Of Rule Of Law, J. Maria Glover

Georgetown Law Faculty Publications and Other Works

This Article begins by providing a brief account of the corporatization of procedure through judicial decision-making and noting some of the detrimental effects it has had on the preservation of rule of law and access to justice. Part II goes on to explore how the judiciary does not retain full control over procedure and how corporate entities have little care for whether a procedural reform simply cuts back at litigation or goes further and cuts back at judicial power and the judicial role itself. To illustrate these points, Part II examines the most recent attempt at "procedural reform" by corporate …

A Politics-Reinforcing Political Question Doctrine, Harlan G. Cohen

Scholarly Works

The modern political question doctrine has long been criticized for shielding the political branches from proper judicial scrutiny and allowing the courts to abdicate their responsibilities. Critics of the doctrine thus cheered when the Supreme Court, in Zivotofsky I, announced a narrowing of the doctrine. Their joy though may have been short-lived. Almost immediately, Zivotofsky II demonstrated the dark side of judicial review of the separation of powers between Congress and the President: deciding separations of powers cases may permanently cut one of the political branches out of certain debates. Judicial scrutiny in a particular case could eliminate political scrutiny …

Making Sense Of Legislative Standing, Matthew I. Hall

Scholarly Works

Legislative standing doctrine is neglected and under-theorized. There has always been a wide range of opinions on the Supreme Court about the proper contours of legislative standing doctrine and even about whether the Court should adjudicate disputes between the other two branches at all. Perhaps owing to these disagreements, the full Court has never articulated a clear vision of the doctrine. While the Court has managed to resolve some cases, it has not achieved the consensus necessary to provide a comprehensive and coherent account of critical doctrinal issues such as what type of injury can give rise to legislative standing …

The Thirteenth Amendment And Interest Convergence, William M. Carter Jr.

Articles

The Thirteenth Amendment was intended to eliminate the institution of slavery and to eliminate the legacy of slavery. Having accomplished the former, the Amendment has only rarely been extended to the latter. The Thirteenth Amendment’s great promise therefore remains unrealized.

This Article explores the gap between the Thirteenth Amendment’s promise and its implementation. Drawing on Critical Race Theory, this Article argues that the relative underdevelopment of Thirteenth Amendment doctrine is due in part to a lack of perceived interest convergence in eliminating what the Amendment’s Framers called the “badges and incidents of slavery.” The theory of interest convergence, in its …

Procedure, Politics And Power: The Role Of Congress, Stephen B. Burbank

All Faculty Scholarship

No abstract provided.

Federal Class Action Reform In The United States: Past And Future And Where Next?, Edward H. Cooper

Articles

Predicting the likely future developments in class action practice in the federal courts of the United States must begin in the past.

In Re Silicon Graphics Inc.: Shareholder Wealth Effects Resulting From The Interpretation Of The Private Securities Litigation Reform Act's Pleading Standard, Marilyn F. Johnson, Karen K. Nelson, Adam C. Pritchard

Articles

This Article presents an empirical study of changes in shareholder wealth resulting from the Ninth Circuit Court of Appeals decision in In re Silicon Graphics Inc. Securities Litigation, which interpreted the pleading provision established in the Private Securities Litigation Reform Act of 1995 (the "Reform Act"). Congress passed the Reform Act as part of an ongoing effort to protect corporations from abusive suits alleging "fraud by hindsight." In such suits, plaintiffs claimed that a sudden drop in a company's stock price was evidence that the issuer and its management covered up the bad news that led to the price drop. …

Cultural Literacy And The Adversary System: The Enduring Problems Of Distrust, Misunderstanding And Narrow Perspective, Jeffrey W. Stempel

Scholarly Works

The meandering road to discovery reform illustrates, among other things, the ineffectiveness of an atomized profession that lacks either sufficient understanding of the adversary system or the resources and forcefulness to address the practical impact of adversarialism. In some ways, lawyers reforming litigation can be characterized as poorer investigators than the sixsome who examined the elephant. The elephant sleuths were guilty of isolation and ignorance. Lawyers and policy makers not only exhibit a lack of information and empathy, but also often show an unwarranted distrust of or contempt for the elements of the profession with which they disagree. Unfortunately, however, …

Immunity Under 42 U.S.C. § 1983: Interpretive Approach And The Search For The Legislative Will, David J. Achtenberg

Faculty Works

The Supreme Court has long struggled with immunity under 42 U.S.C. § 1983. Section 1983 is the principal statutory vehicle used to remedy constitutional violations committed by state and local officials. Expansion or contraction of official immunity under the statute effectively decreases or increases officials' incentives to avoid those violations. A broader immunity doctrine will lead to more constitutional violations. However, it will also lead to a greater willingness to attempt potentially useful innovations whose constitutionality has not yet been determined. A narrower immunity doctrine will reduce the number of constitutional violations. However, it will reduce officials' willingness to experiment. …

Close Enough For Government Work: What Happens When Congress Doesn't Do Its Job, Thomas C. Arthur, Richard Freer

Faculty Articles

There's the beef. The supplemental jurisdiction statute, particularly section 1367(b), is a nightmare of draftsmanship. The problems that flow from that fact are more than aesthetic. The sloppiness makes easy cases hard and sows confusion in areas where there should be, and so easily could have been, clarity. It creates that most wasteful type of litigation - fights over jurisdiction. Subject matter jurisdiction rules ought to be clear and capable of near-mechanical application whenever possible. Such pre­cision was possible in the supplemental jurisdiction, if only someone had spent as much time writing the statute as the trio has spent writing …

Grasping At Burnt Straws: The Disaster Of The Supplemental Jurisdiction Statute, Thomas C. Arthur, Richard Freer

Faculty Articles

Ah, the strawman model! Where would Professors Rowe, Burbank, and Mengler be without it? At a minimum, they would have a much shorter article. If Professor Freer in fact torched the entire farm, it is because there was so much dry straw lying around after the three drafters fin­ished tilting with the strawmen they created in their response to Professor Freer's article. The drafters spend more than half of their article arguing the irrelevant points that a statute was needed after Finley, that the stat­ute was consistent with recommendations of the Federal Courts Study Committee, and that Professor Freer …

A Way Out Of The Social Security Jurisdiction Tangle, John M. Rogers

Law Faculty Scholarly Articles

When Congress recently eliminated the $10,000 amount-in-controversy requirement for federal question jurisdiction in suits against the United States, its agencies, and its officers, Congress effectively resolved, for most cases, the problem of finding subject matter jurisdiction for federal judicial review of federal administrative agency action. Whatever the resolution of such distinct issues as whether there is a cause of action, whether sovereign immunity is waived, and whether administrative remedies have been exhausted, subject matter jurisdiction, at least, will be provided, if nowhere else, by the amended federal question jurisdiction statute, 28 U.S.C. § 1331. The applicability of section 1331, however, …