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Strategic Judicial Lawmaking: An Empirical Investigation Of Ideology And Publication On The U.S. Court Of Appeals For The Ninth Circuit, David S. Law

University of San Diego Public Law and Legal Theory Research Paper Series

Previous studies have demonstrated that, in a number of contexts, federal appeals court judges divide along ideological lines when deciding cases upon the merits. To date, however, researchers have failed to find evidence that circuit judges take advantage of selective publication rules to further their ideological preferences - for example, by voting more ideologically in published cases that have precedential effect than in unpublished cases that lack binding effect upon future panels. This article evaluates the possibility that judges engage in strategic judicial lawmaking by voting more ideologically in published cases than in unpublished cases. To test this hypothesis, all …

A State's Power To Enter Into A Consent Decree That Violates State Law Provisions: What "Findings" Of A Federal Violation Are Sufficient To Justify A Consent Decree That Trumps State Law?, David W. Swift

ExpressO

In the last forty years federal courts have played a prominent role in reshaping our public institutions. And while some scholars question the efficacy of these structural injuctions, the authority of federal courts to order such relief is generally unquestioned. What is open to debate, however, is whether state officials can agree to a remedy they would not have had the authority to order themselves; and if so, to what extent must an underlying constitutional violation be proved so as to justify the remedy?

This article discusses the competing theories and concludes that a remedy that violates state law may …

Another Limit On Federal Court Jurisdiction? Immigrant Access To Class-Wide Injunctive Relief, Jill E. Family

ExpressO

This article examines a statute that may embody another limit on the power of the federal courts. The Illegal Immigration Reform and Immigrant Responsibility Act of 1996 (IIRIRA) implemented sweeping changes that substantially restrict federal court review of administrative immigration decisions. One provision implemented as a part of IIRIRA, 8 U.S.C. § 1252(f)(1), appears, at least at first glance, to prohibit courts from issuing class-wide injunctive relief in immigration cases. Such a restriction would be significant because federal courts have issued class-wide injunctions in the past to stop unconstitutional immigration practices and policies of the federal government. The Supreme Court …

The Evolution Of Sherman Act Jurisdiction: A Roadmap For Competitive Federalism, D. Bruce Johnsen

ExpressO

Recent Supreme Court decisions confirm for the first time in over six decades that federal regulatory authority under the Commerce Clause truly is limited. These decisions coincide with an increasing appreciation among scholars and jurists for the concept of competitive federalism. This paper derives the implications of competitive federalism for the evolution of federal jurisdiction over trade restraints under the Sherman Antitrust Act (1890). It provides a clear and substantively reasoned jurisdictional test based on the analysis of geographic market power familiar to antitrust scholars, practitioners, and regulators in evaluating horizontal mergers. To be subject to federal antitrust jurisdiction under …

Symbolic Counter-Speech, Howard M. Wasserman

Faculty Publications

No abstract provided.

Toward Normative Rules For Agency Interpretation: Defining Jurisdiction Under The Clean Water Act, Robert R.M. Verchick

Robert R.M. Verchick

Wetlands advocates, from environmentalists to duck hunters, dodged a bullet last year when the Bush Administration dropped plans to narrow its jurisdiction over streams and wetlands. The decision marked a key chapter in a story that began in 2001, when the Supreme Court invalidated part of the Migratory Bird Rule, a regulation that for many years had supported federal protection over some intrastate wetlands. The Court's broad rejection of this narrow rule sent federal jurisdiction under the Clean Water Act into a tailspin. The decision opened debates about tributaries and intermittent streams in the Southwest. It also appeared to narrow …

Tribal Courts And Federal Courts: A Very Preliminary Set Of Notes For Federal Courts Teachers, Frank Pommersheim

Frank Pommersheim

No abstract provided.

Judicial Abstinence: Ninth Circuit Jurisdictional Celibacy For Claims Brought Under The Federal Declaratory Judgment Act, Steven Plitt, Joshua D. Rogers

Seattle University Law Review

This Article focuses upon abstention in the context of the Federal Declaratory Judgment Act ("FDJA"). Part I will discuss the various forms of abstention and the historical progression and development of the abstention doctrine in federal case law, setting the background for the expansive holding in Huth v. Hartford Insurance Company of the Midwest. Part II of the article will discuss the procedural history of Huth and the respective rulings of the district court and the Ninth Circuit Court of Appeals as it relates to their application of the abstention doctrine. Part III will then analyze the numerous, and potentially …

The Revolution That Wasn't, Elizabeth Magill

All Faculty Scholarship

A principal legacy of the Rehnquist Court is its revitalization of doctrines associated with federalism. That jurisprudence has many critics and many defenders. They disagree about how to describe what has happened, the importance of what has happened, and the wisdom of what has happened. But they all agree that something has happened. There has been genuine innovation in this area of constitutional law.

Not so with separation of powers doctrine. Commentators do not perceive important shifts in the doctrine. Nor should they-the reasoning and results in the Rehnquist Court cases are of a piece with what came before. Lack …