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Full-Text Articles in Law
The Foreign Sovereign Immunities Act's Evolving Genocide Exception, Vivian Grosswald Curran
The Foreign Sovereign Immunities Act's Evolving Genocide Exception, Vivian Grosswald Curran
Articles
The Foreign Sovereign Immunities Act (FSIA) was passed by Congress as a comprehensive statute to cover all instances when foreign states are to be immune from suit in the courts of the United States, as well as when foreign state immunity is to be limited. Judicial interpretation of one of the FSIA’s exceptions to immunity has undergone significant evolution over the years with respect to foreign state property expropriations committed in violation of international law. U.S. courts initially construed this FSIA exception by denying immunity only if the defendant state had expropriated property of a citizen of a nation other …
Market Power Without Market Definition, Daniel A. Crane
Market Power Without Market Definition, Daniel A. Crane
Articles
Antitrust law has traditionally required proof of market power in most cases and has analyzed market power through a market definition/market share lens. In recent years, this indirect or structural approach to proving market power has come under attack as misguided in practice and intellectually incoherent. If market definition collapses in the courts and antitrust agencies, as it seems poised to do, this will rupture antitrust analysis and create urgent pressures for an alternative approach to proving market power through direct evidence. None of the leading theoretic approaches—such as the Lerner Index or a search for supracompetitive profits—provides a robust …
Substantive Habeas, Kimberly A. Thomas
Substantive Habeas, Kimberly A. Thomas
Articles
Substantive Habeas identifies the US. Supreme Court's recent shift in its habeas jurisprudence from procedure to the substance of habeas review and explores the implications of this change. For decades, the US. Supreme Court has attempted to control the flood of habeas corpus petitions by imposing procedural requirements on prisoners seeking to challenge constitutional error in their cases. These restrictive procedural rules have remained at the center of habeas decision making until recently. Over the past few years, instead of further constraining the procedural gateway for habeas cases, the Supreme Court has shifted its focus to the substance of habeas. …
Formalism And Employer Liability Under Title Vii, Samuel R. Bagenstos
Formalism And Employer Liability Under Title Vii, Samuel R. Bagenstos
Articles
Most lawyers, law professors, and judges are familiar with two standard critiques of formalism in legal reasoning. One is the unacknowledged-policymaking critique. This critique argues that formalist reasoning purports to be above judicial policymaking but instead simply hides the policy decisions offstage. The other is the false-determinacy critique. This critique observes that formalist reasoning purports to reduce decision costs in the run of cases by sorting cases into defined categories, but argues that instead of going away the difficult questions of application migrate to the choice of the category in which to place a particular case.
Wisdom Of The Ages Or Dead-Hand Control? Patentable Subject Matter For Diagnostic Methods After In Re Bilski, Rebecca S. Eisenberg
Wisdom Of The Ages Or Dead-Hand Control? Patentable Subject Matter For Diagnostic Methods After In Re Bilski, Rebecca S. Eisenberg
Articles
In 1980, the Supreme Court gave a reassuring signal to the then-nascent biotechnology industry about the availability of patent protection for the fruits of its research when it upheld the patentability of a genetically modified living organism in Diamond v. Chakrabarty. Twenty-five years later, the Court seemed poised to reexamine the limits of patentable subject matter for advances in the life sciences when it granted certiorari in Laboratory Corporation v. Metabolite. But the Federal Circuit had not addressed the patentable subject matter issue in Laboratory Corporation, and the Court ultimately dismissed the certiorari p etition as improvidently granted. Five years …
How Should We Study District Judge Decision-Making?, Pauline T. Kim, Margo Schlanger, Christina L. Boyd, Andrew D. Martin
How Should We Study District Judge Decision-Making?, Pauline T. Kim, Margo Schlanger, Christina L. Boyd, Andrew D. Martin
Articles
Understanding judicial decision-making requires attention to the specific institutional settings in which judges operate. The choices available to judges are determined not only by the law and facts of the case but also by procedural context. The incentives and constraints shaping judges’ decision-making will vary depending on, for example, whether they have a life-appointment or are elected; whether they hear cases alone or with colleagues; and whether and under what circumstances their decisions might be altered, overturned, or undone by the actions of others. The basic insight that the institutional context matters has led to increasingly sophisticated studies of how …
A Gambling Paradox: Why An Origin-Neutral 'Zero-Quota' Is Not A Quota Under Gats Article Xvi, Donald H. Regan
A Gambling Paradox: Why An Origin-Neutral 'Zero-Quota' Is Not A Quota Under Gats Article Xvi, Donald H. Regan
Articles
In US-Gambling, the Appellate Body held that an origin-neutral prohibition on remote gambling (which is how they mostly viewed the United States law) was "in effect" a "zero-quota", and that such a "zero-quota" violated GATS Article XVI:2. That holding has been widely criticized, especially for what critics refer to as the Appellate Body's "effects test". This article argues that the Appellate Body's "in effect" analysis is not an "effects test" and is not the real problem. The real mistake is regarding a so-called "zero-quota" as a quota under Article XVI. That is inconsistent with the ordinary meaning of the word …
Free-Standing Due Process And Criminal Procedure: The Supreme Court's Search For Interpretive Guidelines, Jerold H. Israel
Free-Standing Due Process And Criminal Procedure: The Supreme Court's Search For Interpretive Guidelines, Jerold H. Israel
Articles
When I was first introduced to the constitutional regulation of criminal procedure in the mid-1950s, a single issue dominated the field: To what extent did the due process clause of the Fourteenth Amendment impose upon states the same constitutional restraints that the Fourth, Fifth, Sixth and Eighth Amendments imposed upon the federal government? While those Bill of Rights provisions, as even then construed, imposed a broad range of constitutional restraints upon the federal criminal justice system, the federal system was (and still is) minuscule as compared to the combined systems of the fifty states. With the Bill of Rights provisions …
Making Uncle Sam Pay: A Review Of Equal Access To Justice Act Cases In The Sixth Circuit, 1983-1987, Martin Geer, Paul D. Reingold
Making Uncle Sam Pay: A Review Of Equal Access To Justice Act Cases In The Sixth Circuit, 1983-1987, Martin Geer, Paul D. Reingold
Articles
Despite the recent admonition of the Supreme Court that a "request for attorneys' fees should not result in a second major litigation,"12 the courts have been frequently called on to interpret the often ambiguous language of the EAJA. The U.S. Court of Appeals for the Sixth Circuit has not been spared this difficult chore. While the 1985 amendments have clarified some provisions of the Act and affected some major decisions in the Sixth Circuit, the recent changes have also left other previously settled areas in a state of flux. This article will review the Sixth Circuit's EAJA decisions from 1983-1987, …
Stare Decisis - Liability Of Municipal Corporations For Tort, Edson R. Sunderland
Stare Decisis - Liability Of Municipal Corporations For Tort, Edson R. Sunderland
Articles
Courts are charged with the duty of declaring the law. They are also required to decide cases. Either one of those functions might be performed with comparative ease if it were divorced from the other, but when the court is simultaneously obliged to do both, the difficulties are very apparent. To decide a case and at the same time to declare the law means that the court is required to generalize every legal proposition upon which it acts in making its decision. But judges are not omniscient. Who can so fully understand the logical implications and the latent possibilities of …
Sane Procedural Reform, Robert E. Bunker
Sane Procedural Reform, Robert E. Bunker
Articles
In these later days much is said about reforming the procedure of our courts, about recalllng our judges, at arbitrarily appointed times, and about reversing their decisions by popular vote. Most of what is said about these matters is said by those who have least reason to say it. It is no exaggeration to assert that those who are most severe in their criticism of the courts and of their procedure and most lavish in their suggestions of reform are they who know little, beyond the most general, about the courts and nothing about their procedure from personal contact with …