Law Commons^™

Self-Intervention, Lumen N. Mulligan

Faculty Works

You cannot intervene in your own case, duh! Yet the United States Supreme Court granted certiorari on just this issue: Does Federal Rule of Civil Procedure 24(a)(2) allow state legislative leaders, seeking to represent the state’s sovereign interest, intervene when the attorney general is already representing the state’s sovereign interest. In this article, I contend that the text, history, and practice of Rule 24(a)(2) prohibits such “self-intervention.” I then explore how the fictive approach to state immunity established in Ex parte Young causes this confusion, while concluding that the doctrine, properly understood, focuses on real, not nominal, parties-in-interest. Next, I …

28 U.S.C. § 1331 Jurisdiction In The Roberts Court: A Rights-Inclusive Approach, Lumen N. Mulligan

Faculty Works

In this symposium piece, I argue that the Roberts Court, whether intentionally or not, is crafting a 28 U.S.C. § 1331 doctrine that is more solicitous of congressional control than the Supreme Court’s past body of jurisdictional law. Further, I contend that this movement toward greater congressional control is a positive step for the court. In making this argument, I review the foundations of the famous Holmes test for taking § 1331 jurisdiction and the legal positivist roots for that view. I discuss the six key Roberts Court cases that demonstrate a movement away from a simple Holmes test and …

The Judicial Reforms Of 1937, Barry Cushman

Journal Articles

The literature on reform of the federal courts in 1937 understandably focuses on the history and consequences of President Franklin D. Roosevelt’s ill-fated proposal to increase the membership of the Supreme Court. A series of decisions declaring various components of the New Deal unconstitutional had persuaded Roosevelt and some of his advisors that the best way out of the impasse was to enlarge the number of justiceships and to appoint to the new positions jurists who would be “dependable” supporters of the Administration’s program. Yet Roosevelt and congressional Democrats also were deeply troubled by what they perceived as judicial obstruction …

Should The Supreme Court Fear Congress?, Neal Devins

Neal E. Devins

No abstract provided.

The Structural Safeguards Of Federal Jurisdiction, Tara Leigh Grove

Tara L. Grove

Scholars have long debated Congress’s power to curb federal jurisdiction and have consistently assumed that the constitutional limits on Congress’s authority (if any) must be judicially enforceable and found in the text and structure of Article III. In this Article, I challenge that fundamental assumption. I argue that the primary constitutional protection for the federal judiciary lies instead in the bicameralism and presentment requirements of Article I. These Article I lawmaking procedures give competing political factions (even political minorities) considerable power to “veto” legislation. Drawing on recent social science and legal scholarship, I argue that political factions are particularly likely …

The Lost History Of The Political Question Doctrine, Tara Leigh Grove

Tara L. Grove

This Article challenges the conventional narrative about the political question doctrine. Scholars commonly assert that the doctrine, which instructs that certain constitutional questions are “committed” to Congress or to the executive branch, has been part of our constitutional system since the early nineteenth century. Furthermore, scholars argue that the doctrine is at odds with the current Supreme Court’s view of itself as the “supreme expositor” of all constitutional questions. This Article calls into question both claims. The Article demonstrates, first, that the current political question doctrine does not have the historical pedigree that scholars attribute to it. In the nineteenth …

The Origins (And Fragility) Of Judicial Independence, Tara Leigh Grove

Tara L. Grove

The federal judiciary today takes certain things for granted. Political actors will not attempt to remove Article III judges outside the impeachment process; they will not obstruct federal court orders; and they will not tinker with the Supreme Court’s size in order to pack it with like-minded Justices. And yet a closer look reveals that these “self-evident truths” of judicial independence are neither self-evident nor necessary implications of our constitutional text, structure, and history. This Article demonstrates that many government officials once viewed these court-curbing measures as not only constitutionally permissible but also desirable (and politically viable) methods of “checking” …

The Power Of "So-Called Judges", Tara Leigh Grove

Tara L. Grove

No abstract provided.

The Ultimate Independence Of The Federal Courts: Defying The Supreme Court In The Exercise Of Federal Common Law Powers, Ronald H. Rosenberg

Ronald H. Rosenberg

No abstract provided.

The Jurisdiction Canon, Aaron-Andrew P. Bruhl

Aaron-Andrew P. Bruhl

This Article concerns the interpretation of jurisdictional statutes. The fundamental postulate of the law of the federal courts is that the federal courts are courts of limited subject-matter jurisdiction. That principle is reinforced by a canon of statutory interpretation according to which statutes conferring federal subject-matter jurisdiction are to be construed narrowly, with ambiguities resolved against the availability of federal jurisdiction. This interpretive canon is over a century old and has been recited in thousands of federal cases, but its future has become uncertain. The Supreme Court recently stated that the canon does not apply to many of today’s most …

The Power Of "So-Called Judges", Tara Leigh Grove

Faculty Publications

No abstract provided.

The Origins (And Fragility) Of Judicial Independence, Tara Leigh Grove

Faculty Publications

The federal judiciary today takes certain things for granted. Political actors will not attempt to remove Article III judges outside the impeachment process; they will not obstruct federal court orders; and they will not tinker with the Supreme Court’s size in order to pack it with like-minded Justices. And yet a closer look reveals that these “self-evident truths” of judicial independence are neither self-evident nor necessary implications of our constitutional text, structure, and history. This Article demonstrates that many government officials once viewed these court-curbing measures as not only constitutionally permissible but also desirable (and politically viable) methods of “checking” …

The Jurisdiction Canon, Aaron-Andrew P. Bruhl

Faculty Publications

This Article concerns the interpretation of jurisdictional statutes. The fundamental postulate of the law of the federal courts is that the federal courts are courts of limited subject-matter jurisdiction. That principle is reinforced by a canon of statutory interpretation according to which statutes conferring federal subject-matter jurisdiction are to be construed narrowly, with ambiguities resolved against the availability of federal jurisdiction. This interpretive canon is over a century old and has been recited in thousands of federal cases, but its future has become uncertain. The Supreme Court recently stated that the canon does not apply to many of today’s most …

The Lost History Of The Political Question Doctrine, Tara Leigh Grove

Faculty Publications

This Article challenges the conventional narrative about the political question doctrine. Scholars commonly assert that the doctrine, which instructs that certain constitutional questions are “committed” to Congress or to the executive branch, has been part of our constitutional system since the early nineteenth century. Furthermore, scholars argue that the doctrine is at odds with the current Supreme Court’s view of itself as the “supreme expositor” of all constitutional questions. This Article calls into question both claims. The Article demonstrates, first, that the current political question doctrine does not have the historical pedigree that scholars attribute to it. In the nineteenth …

Why Jurisprudence Doesn't Matter For Customary International Law, Steven Walt

William & Mary Law Review

No abstract provided.

History Of The Statutory Rules Of Federal Jurisdiction And Procedure, Robert C. Brown

Dr Robert Brown

No abstract provided.

Securing Sovereign State Standing, Katherine Mims Crocker

Faculty Publications

No abstract provided.

Federal Corporate Law, Federalism, And The Federal Courts, Gordon G. Young

Gordon G. Young

No abstract provided.

The Complexity Of Jurisdictional Clarity, Scott Dodson

Faculty Publications

The ideal of clear and simple jurisdictional rules seems like a no-brainer. Clarity in areas of subject-matter jurisdiction generally reduces the cost of litigating those issues and thus preserves litigant and judicial resources for the merits of a dispute. As a result, scholars and justices regularly promote the rhetoric of jurisdictional clarity. Yet no one has probed that rhetoric or reconciled it with the reality of subject-matter jurisdiction doctrine, which is anything but clear and simple. This Article begins to fill that gap, and, in the process, shifts the perspective of existing conversations between rules and standards and between mandates …

The Structural Safeguards Of Federal Jurisdiction, Tara Leigh Grove

Faculty Publications

Scholars have long debated Congress’s power to curb federal jurisdiction and have consistently assumed that the constitutional limits on Congress’s authority (if any) must be judicially enforceable and found in the text and structure of Article III. In this Article, I challenge that fundamental assumption. I argue that the primary constitutional protection for the federal judiciary lies instead in the bicameralism and presentment requirements of Article I. These Article I lawmaking procedures give competing political factions (even political minorities) considerable power to “veto” legislation. Drawing on recent social science and legal scholarship, I argue that political factions are particularly likely …

Less Than Meets The Eye: Anti-Discrimination And The Development Of Section 5 Enforcement And Eleventh Amendment Abrogation Law Since City Of Boerne V. Flores, Justin Schwartz

Justin Schwartz

The conventional wisdom is that the Supreme Court's interpretation of the Eleventh Amendment since City of Boerne has raised the bar for Congress to pass anti discrimination legislation and made it far more difficult for plaintiffs to sue the states and state agencies. I show, by close analysis of the Court's case law on state sovereign immunity and Congress' Section 5 power to abrogate that immunity, that this is a misreading.

As the jurisprudence developed from Boerne, Kimel (age discrimination) and Garrett (disability discrimination in employment) to Hibbs (sex discrimination) and Lane (disability discrimination in public accommodations), the Court has …

Plains Commerce Bank V. Long Family Land And Cattle Company, Inc.: An Introduction With Questions, Frank Pommersheim

Frank Pommersheim

No abstract provided.

The Forum Defendant Rule In Arkansas, Scott Dodson

Faculty Publications

Section 1441(b) of the removal statute prohibits removal of a diversity case if a defendant is a citizen of the state in which the case was originally filed. The bar to removal is known as the Forum Defendant Rule. Is removal in violation of the Forum Defendant Rule a jurisdictional or nonjurisdictional defect? The characterization matters because a jurisdictional defect can be raised at any time, while a nonjurisdictional defect must be raised within a specific period of time or is waived. The Supreme Court has not resolved the characterization, but a number of circuit courts, including the Eighth Circuit, …

Should The Supreme Court Fear Congress?, Neal Devins

Faculty Publications

No abstract provided.

The Constitutional Limits To Court-Stripping, Michael J. Gerhardt

Faculty Publications

This Article is part of a colloquy between Professor Michael J. Gerhardt and Professor Martin Redish about the constitutionality of court-stripping measures. Court-stripping measures are laws restricting federal court jurisdiction over particular subject matters. In particular, the authors discuss the constitutionality of the Marriage Protection Act of 2004. Professor Gerhardt argues that the Act is unconstitutional and threatens to destroy the principles of separation of powers, federalism and due process. It prevents Supreme Court review of Congressional action and hinders the uniformity and finality of constitutional law. Furthermore, the Act violates the equal protection component of the Fifth Amendment Due …

The Ultimate Independence Of The Federal Courts: Defying The Supreme Court In The Exercise Of Federal Common Law Powers, Ronald H. Rosenberg

Faculty Publications

No abstract provided.

The Domestic Relations Exception To Federal Jurisdiction: Rethinking An Unsettled Federal Courts Doctrine, Michael Ashley Stein

Faculty Publications

No abstract provided.

Ripeness And The Constitution, Gene R. Nichol

Faculty Publications

No abstract provided.

Justice Rehnquist, Statutory Interpretation, The Policies Of Clear Statement, And Federal Jurisdiction, William V. Luneburg

Indiana Law Journal

No abstract provided.

The Shrinking Forum: The Supreme Court's Limitation Of Jurisdiction - An Argument For A Federal Forum In Multi-Party, Multi-State Litigation, Allen R. Kamp

William & Mary Law Review

No abstract provided.