Law Commons^™

New Hurdles To Redistricting Reform: State Evasion, Moore, And Partisan Gerrymandering, Manoj Mate

Journal Articles

Proponents of fair districting reforms continue to face challenges in seeking to address the problem of partisan gerrymandering. Even in states that have successfully enacted redistricting reforms, state actors have been able to evade compliance, and state courts have been unable to guarantee fair districts. In addition, the Supreme Court’s decision in Moore v. Harper could also limit state court efforts to guarantee fair districts. This Article argues that state evasion and Moore threaten to undermine the efficacy of fair districting norms recognized by state courts or enacted through either state political processes. Moore could create a one-way ratchet by …

The Ninth Amendment: The "Hard Problem" Of U.S. Constitutional Law, Jorge M. Farinacci Fernós

Journal Articles

Like with the mythical lamp that can grant any three wishes, federal courts in the United States have buried the Ninth Amendment of the U.S. Constitution deep within the sands of American law in order to avoid coming to terms with its potential regarding the protection of unenumerated constitutional rights. Courts have been able to do so, in part, because of the seemingly impossible task of extracting from the text and history of the Ninth Amendment sufficient elements needed to identify which unenumerated rights may be subject to judicial enforcement.

This impossibility is an illusion and is contrary to the …

The New Comity Abstention, John Harland Giammatteo

Journal Articles

In the past ten years, lower federal courts have quietly but regularly abstained from hearing federal claims challenging state court procedures, citing concerns of comity and federalism. Federal courts have dismissed a broad range of substantive challenges tasked to them by Congress, including under the Americans with Disabilities Act, the Indian Child Welfare Act, and various constitutional provisions, involving state court eviction proceedings, foster care determinations, bail and criminal justice policies, COVID-era safety practices, and other instances where state courts determine state policy.

This paper is the first to argue that these decisions constitute a new abstention doctrine, unmoored from …

Historical Kinship And Categorical Mischief: The Use And Misuse Of Doctrinal Borrowing In Intellectual Property Law, Mark Bartholomew, John Tehranian

Journal Articles

Analogies are ubiquitous in legal reasoning, and, in copyright jurisprudence, courts frequently turn to patent law for guidance. From introducing doctrines meant to regulate online intermediaries to evaluating the constitutionality of resurrecting copyrights to works from the public domain, judges turn to patent law analogies to lend ballast to their decisions. At other times, however, patent analogies with copyright law are quickly discarded and differences between the two regimes highlighted. Why? In examining the transplantation of doctrinal frameworks from one intellectual property field to another, this Article assesses the circumstances in which courts engage in doctrinal borrowing, discerns their rationale …

Why Law Isn’T Jazz: A Response, James A. Gardner

The Docket

No abstract provided.

Statutory Interpretation And Chevron Deference In The Appellate Courts: An Empirical Analysis, Amy Semet

Journal Articles

What statutory methods does an appellate court use in reviewing decisions of an administrative agency? Further, in doing this review, are appellate judges more likely to use certain statutory methods when they expressly cite the Chevron two-step framework than if they do not? This Article explores the answers to these questions using an original database of over 200 statutory interpretation cases culled from more than 2,500 cases decided in appellate courts reviewing National Labor Relations Board (NLRB or the Board) adjudications from 1994 through 2020. In particular, the study examined the use of text, language canons, substantive canons, legislative history, …

Ford's Underlying Controversy, Christine P. Bartholomew, Anya Bernstein

Journal Articles

Personal jurisdiction—the doctrine that determines where a plaintiff can sue—is a mess. Everyone agrees that a court can exercise personal jurisdiction over a defendant with sufficient in-state contacts related to a plaintiff’s claim. This Article reveals, however, that courts diverge radically in their understanding of what a claim is. Without stating so outright, some courts limit the claim to a cause of action or its elements, while others understand it to encompass the controversy underlying the litigation. What is worse, few have noticed that these discrepancies even exist, much less explained why. This Article does just that. We show that …

What Is A “Case”?, Lynn M. Mather

Journal Articles

This article interrogates the concept of a “case” in court, in an effort to clarify underlying concerns in debates over whether there is “too much” or “too little” litigation. One perspective on litigation takes a bottom-up view, examining the considerations and motives of disputing parties who file civil claims. This perspective includes theories about litigation and social structure, economics, dispute transformation, political participation, and psychology. An alternative top-down view examines litigation from the perspective of government, including its interest in dispute resolution, social control, and institutional capacities of courts. The article reviews and critiques existing literature on these perspectives and …

The Reality Of Class-Action Appeals, Christine P. Bartholomew

Book Reviews

Reviewing Bryan Lammon, An Empirical Study of Class-Action Appeals (2020).

May It Please The Court: A Longitudinal Study Of Judicial Citation To Academic Legal Periodicals, Brian T. Detweiler

Law Librarian Journal Articles

Part I of this article examines the proportion of reported opinions from U.S. federal and state courts between 1945 and 2018 that cite at least one academic legal periodical, while Part II applies that data beginning in 1970 to compare the proportion of opinions that cite to the flagship journals of 17 law schools selected and hierarchically categorized based on their U.S. News & World Reports rankings. Representing the most elite schools are Harvard Law Review and Yale Law Journal, the two longest running student-edited journals at arguably the two most prestigious law schools in the United States, followed by …

The Specific Consumer Expectations Test For Product Defects, Clayton J. Masterman, W. Kip Viscusi

Journal Articles

In this Article, we propose that courts adopt an amended version of the consumer expectations test that we call the “specific consumer expectations test.” The specific consumer expectations test would apply to any product or product component for which consumers have clear, articulable ex ante expectations about the function of the product. Under the specific consumer expectations test, a defendant is liable if consumers expected such a product to reduce a particular risk, and the product in fact increased that risk. Similarly, if a product was intended to convey a particular benefit, but in fact harmed consumers along the same …

E-Notice, Christine P. Bartholomew

Journal Articles

Social media platforms and smartphone manufacturers face class action lawsuits, but how open are federal courts to using these very technologies to notify members of a class action? This Article details the results from an empirical analysis of over 2700 federal class notice decisions. It finds class notice changing, but very slowly. Supreme Court precedent demands a dynamic standard for class action notice. However, fears of change, technology, and imprecision keep courts tethered to twentieth-century modes of communication. This judicial fear encumbers E-Notice—at a cost to the utility of class action procedures.

Before Interpretation, Anya Bernstein

Journal Articles

What a statutory interpretation opinion interprets may seem given. It is not: this article shows how judges select what text to interpret. That text may seem to carry with it one of a limited range of contexts. It does not: this article shows how judges draw on a variety of factors to situate the texts they interpret in unique, case-specific contexts. Selecting and situating form the infrastructure of interpretation. Their creativity and choice provide the basis on which assertions of determinate meaning are made. That process reveals how contestation and indeterminacy permeate legal interpretation even as judicial opinions seek to …

Globalization, Rights And Judicial Review In The Supreme Court Of India, Manoj Mate

Journal Articles

This article examines the broader and evolving role of the Supreme Court of India in an era of globalization by examining the Court’s decisionmaking in rights-based challenges to economic liberalization, privatization, and development policies over the past three decades. While the Court has been mostly deferential in its review of these policies and projects, it has in many cases been active and instrumental in remaking and reshaping regulatory frameworks, bureaucratic structures, accountability norms, and in redefining the terrain of fundamental rights that non-governmental organizations (NGOs) and other litigants have invoked in challenges to these policies. This article argues that the …

Disparity In Judicial Misconduct Cases: Color-Blind Diversity?, Athena D. Mutua

Journal Articles

This article presents and analyzes preliminary data on racial and gender disparities in state judicial disciplinary actions. Studies of demographic disparities in the context of judicial discipline do not exist. This paper presents a first past and preliminary look at the data collected on the issue and assembled into a database. The article is also motivated by the resistance encountered to inquiries into the demographic profile of the state bench and its judges. As such, it also tells the story of the journey undertaken to secure this information and critiques what the author terms a practice of colorblind diversity. Initially …

The Story Of Prudential Standing, S. Todd Brown

Journal Articles

Prudential standing, it seems, is the latest target in the Roberts Court’s effort to “bring some discipline” to jurisdictional and pseudo-jurisdictional concepts. During the Court’s last two terms, it issued a unanimous opinion that excised the zone of interests test from prudential standing doctrine (Lexmark), two unanimous opinions that questioned federal courts’ prudential discretion to decline jurisdiction (Lexmark and Driehaus), and a bitterly divided opinion in which the classification of a standing principle as prudential or constitutional was decisive (Windsor). Moreover, in Lexmark, the Court suggested that the third party standing principle may not be properly classified as prudential standing …

Constitutional Gaps In Bankruptcy, S. Todd Brown

Journal Articles

Federal bankruptcy law incorporates a broad range of commercial and related matters that are otherwise left to the States under the Constitution, follows an efficiency-centered process model that may implicate due process, and relies upon a judicial structure that appears to be inconsistent with Article III. In spite of the crushing volume of bankruptcy cases and proceedings each year in which the resolution of one or more of these questions may be relevant, the Supreme Court has had few opportunities to tackle them directly. Indeed, after more than two centuries, the Court has provided precious few insights into the limits …

Checks, Balances And Judicial Wizardry: Constitutional Delegation And Congressional Legislation, Robert I. Reis

Journal Articles

No abstract provided.

Non-Pecuniary Interests And The Injudicious Limits Of Appellate Standing In Bankruptcy, S. Todd Brown

Journal Articles

Standing to appeal bankruptcy court orders today is limited to those with a pecuniary interest. This prudential limitation is based on the person aggrieved requirement of Section 39(c) of the Bankruptcy Act of 1898 - a requirement that was not included in the Bankruptcy Code. This article examines the extensive differences between the Act and the Code, the potential justifications for extending the pecuniary interest test in spite of the omission of the person aggrieved requirement, and the potential ramifications for parties and the integrity of the bankruptcy process. This analysis suggests that standing to appeal bankruptcy orders should be …

The Writ Of Habeas Corpus And The Special Court For Sierra Leone: Addressing An Unforeseen Problem In The Establishment Of A Hybrid Court, Anthony O'Rourke

Journal Articles

No abstract provided.

Foreign Judgments At Common Law: Rethinking The Enforcement Rules, Tanya J. Monestier

Journal Articles

England and Canada have adopted divergent approaches to the enforcement of foreign civil and commercial judgments. An English court will only enforce a foreign judgment where the defendant submitted to the junsdiction of the foreign court, or was present in the foreign jurisdiction when served with process. This position. while protecting domestic defendants, is outdated and does little to further the objectives underpinning judgment enforcement- Canadian courts, by contrast, have been far more liberal than their English counterparts, enforcing foreign judgments in cases where there is a "real and substantial connection" between the dispute and the judgment forum. While this …

A Law Librarian's Guide To Unpublished Judicial Opinions, Joseph L. Gerken

Law Librarian Journal Articles

Mr. Gerken provides readers with an overview of the rules and practice related to the nonpublication of judicial decisions. Using a question-and-answer format, he offers a convenient reference source for librarians to consult when responding to patron inquiries about unpublished opinions. A selective annotated bibliography of articles on the subject is included.

Does Lewis V. Casey Spell The End To Court-Ordered Improvement Of Prison Law Libraries?, Joseph L. Gerken

Law Librarian Journal Articles

The Supreme Court's decision in Lewis v. Casey raises the bar for advocates seeking court-ordered improvements in prison law libraries. Whether it dooms all such efforts to failure may well depend on the willingness of trial courts to take into account the realities of prisoners' pro se litigation.

The More Things Change…: Superficial State Constitutional Analysis At The New York Court Of Appeals, James A. Gardner

Journal Articles

No abstract provided.

Lawrence Baum's American Courts: Process And Policy (Book Review), Lynn M. Mather

Book Reviews

No abstract provided.

Citizenship And Scholarship (Review Essay), George Kannar

Book Reviews

Review of Robert H. Bork, The Tempting of America: The Political Seduction of the Law (1990); Ethan Bronner, Battle for Justice: How the Bork Nomination Shook America (1989); Michael Pertschuk & Wendy Schaetzel, The People Rising: The Campaign Against the Bork Nomination (1989); Patrick B. mcGuigan & Dawn M. Weyrich, Ninth Justice: The Battle for Bork (1990).

The Marshall Court And The Writing Of Law And History (Review Of G. Edward White, The Marshall Court And Cultural Change, 1815-35, Vols. 3 And 4. The Oliver Wendell Holmes Devise History Of The Supreme Court Of The United States), Alfred S. Konefsky

Book Reviews

No abstract provided.

Litigation Across Space And Time: Courts, Conflict, And Social Change, David M. Engel

Journal Articles

One of the problems facing researchers who have studied courts across time and space has been the cultural variability of seemingly uniform analytic categories, including conceptions of time and space themselves. This article proposes that we take such variations in meaning as a starting point for comparative studies of courts and social change rather than viewing them as were "noise" in the system. Litigation in Chiangmai, Thailand, is presented as an example. Changing conceptions of "space" in Thailand from the nineteenth century to the present illustrate the transformation of legal and political authority as well as the proliferation of normative …

Dispute Processing And A Longitudinal Approach To Trial Courts, Lynn Mather

Journal Articles

This article suggests ways to integrate the insights and findings of two rather distinct fields: docket-based, longitudinal studies of trial courts and studies of dispute processing. In particular, I argue that longitudinal research on courts would benefit enormously from the incorporation of concepts and data on dispute processing. For example, instead of taking court cases as the starting point for study, longitudinal research should explore the multistage and transformative nature of disputing. Historical data should also be collected on the nature of the relationships between opposing litigants, on the roles played by participants other than the litigants (lawyers, supporters, audiences, …

The Circle Of Boys Market: A Comment On Judicial Inventiveness, James B. Atleson

Journal Articles

No abstract provided.