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Articles 1 - 22 of 22
Full-Text Articles in Law
Judicial Fidelity, Caprice L. Roberts
Judicial Fidelity, Caprice L. Roberts
Pepperdine Law Review
Judicial critics abound. Some say the rule of law is dead across all three branches of government. Four are dead if you count the media as the fourth estate. All are in trouble, even if one approves of each branch’s headlines, but none of them are dead. Not yet. Pundits and scholars see the latest term of the Supreme Court as clear evidence of partisan politics and unbridled power. They decry an upheaval of laws and norms demonstrating the dire situation across the federal judiciary. Democracy is not dead even when the Court issues opinions that overturn precedent, upends long-standing …
The False Promise Of Jurisdiction Stripping, Daniel Epps, Alan M. Trammell
The False Promise Of Jurisdiction Stripping, Daniel Epps, Alan M. Trammell
Scholarship@WashULaw
Jurisdiction stripping is seen as a nuclear option. Its logic is simple: by depriving federal courts of jurisdiction over some set of cases, Congress ensures those courts cannot render bad decisions. In theory, it frees up the political branches and the states to act without fear of judicial second-guessing. To its proponents, it offers the ultimate check on unelected and unaccountable judges. To critics, it poses a grave threat to the separation of powers. Both sides agree, though, that jurisdiction stripping is a powerful weapon. On this understanding, politicians, activists, and scholars throughout American history have proposed jurisdiction stripping measures …
The Federal Question Jurisdiction Under Article Iii: “First In The Minds Of The Framers,” But Today, Perhaps, Falling Short Of The Framers’ Expectations, Arthur D. Hellman
The Federal Question Jurisdiction Under Article Iii: “First In The Minds Of The Framers,” But Today, Perhaps, Falling Short Of The Framers’ Expectations, Arthur D. Hellman
Articles
As Chief Justice Marshall explained, “the primary motive” for creating a “judicial department” for the new national government was “the desire of having a [national] tribunal for the decision of all national questions.” Thus, although Article III of the Constitution lists nine kinds of “Cases” and “Controversies” to which the “judicial Power” of the United States “shall extend,” “the objects which stood first in the minds of the framers” were the cases “arising under” the Constitution, laws, and treaties of the United States. Today we refer to this as the federal question jurisdiction.
Of all federal question cases, the Framers …
Biden V. Nebraska: The New State Standing And The (Old) Purposive Major Questions Doctrine, Jed Handelsman Shugerman
Biden V. Nebraska: The New State Standing And The (Old) Purposive Major Questions Doctrine, Jed Handelsman Shugerman
Faculty Scholarship
Chief Justice Roberts’s majority opinion in Biden v. Nebraska does not sufficiently explain how Missouri has standing under established Article III doctrine, nor how the Court approaches the major questions doctrine as a method of statutory interpretation. Clarification can come from other opinions, even other cases entirely, in which Justice’s counterarguments are suggestive of the real arguments underlying the decisions.
MOHELA may have faced a concrete injury from the student debt waiver, but there was no evidence that Missouri would – and the majority had no answer for how Missouri had standing without an injury. A debate over special state …
How In The World Could They Reach That Conclusion?, Hon. Carlton Reeves
How In The World Could They Reach That Conclusion?, Hon. Carlton Reeves
Dickinson Law Review (2017-Present)
No abstract provided.
When Interpretive Communities Clash On Immigration Law: The Courts’ Mediating Role In Noncitizens’ Rights And Remedies, Peter Margulies
When Interpretive Communities Clash On Immigration Law: The Courts’ Mediating Role In Noncitizens’ Rights And Remedies, Peter Margulies
Touro Law Review
Immigration law gains clarity through the lens of Robert Cover's compelling work on law as a "system of meaning." Cover's vision inspires us to consider immigration law as a contest between two interpretive communities: acolytes of the protective approach, which sees law as a haven for noncitizens fleeing harm in their home countries, and followers of the regulatory approach, which stresses sovereignty and strict adherence to legal categories. Immigration law's contest between contending camps need not be a zero-sum game. As Cover and Alex Aleinikoff observed in their classic article on habeas corpus, a legal remedy can also be a …
28 U.S.C. § 1331 Jurisdiction In The Roberts Court: A Rights-Inclusive Approach, Lumen N. Mulligan
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 …
A Scapegoat Theory Of Bivens, Katherine Mims Crocker
A Scapegoat Theory Of Bivens, Katherine Mims Crocker
Faculty Publications
Some scapegoats are innocent. Some warrant blame, but not the amount they are made to bear. Either way, scapegoating can allow in-groups to sidestep social problems by casting blame onto out-groups instead of confronting such problems--and the in-groups' complicity in perpetuating them--directly.
This Essay suggests that it may be productive to view the Bivens regime's rise as countering various exercises in scapegoating and its retrenchment as constituting an exercise in scapegoating. The earlier cases can be seen as responding to social structures that have scapegoated racial, economic, and other groups through overaggressive policing, mass incarceration, and inequitable government conduct more …
Table Of Contents, Seattle University Law Review
Table Of Contents, Seattle University Law Review
Seattle University Law Review
Table of Contents and Special Thanks.
The Future Of Supreme Court Reform, Daniel Epps, Ganesh Sitaraman
The Future Of Supreme Court Reform, Daniel Epps, Ganesh Sitaraman
Scholarship@WashULaw
For a brief moment in the fall of 2020, structural reform of the Supreme Court seemed like a tangible possibility. After the death of Justice Ruth Bader Ginsburg in September, some prominent Democratic politicians and liberal commentators warmed to the idea of expanding the Court to respond to Republicans’ rush to confirm a nominee before the election, despite their refusal four years prior to confirm Judge Merrick Garland on the ground that it was an election year. Though Democratic candidate Joe Biden won the Presidency in November, Democrats lost seats in the House and have a majority in the Senate …
Bivens And The Ancien Régime, Carlos Manuel Vázquez
Bivens And The Ancien Régime, Carlos Manuel Vázquez
Georgetown Law Faculty Publications and Other Works
In its most recent decision narrowly construing Bivens v. Six Unknown Named Agents of Federal Bureau of Narcotics, the Supreme Court derided Bivens as the product of an “‘ancien regime,’ ... [in which] the Court assumed it to be a proper judicial function to ‘provide such remedies as are necessary to make effective’ a statute’s purpose.” This Essay considers the relevance for Bivens claims of the Court’s shift to a nouveau régime to address the implication of private rights of action under statutes. It first describes and assesses the Court’s reasons for shifting to the nouveau r …
Eager To Follow: Methodological Precedent In Statutory Interpretation, Aaron-Andrew P. Bruhl
Eager To Follow: Methodological Precedent In Statutory Interpretation, Aaron-Andrew P. Bruhl
Faculty Publications
An important recent development in the field of statutory interpretation is the emergence of a movement calling for "methodological precedent"--a regime under which courts give precedential effect to interpretive methodology. In such a system, a case would establish not only what a particular statute means but could also establish binding rules of methodology--which tools are valid, in what order, and so on. The movement for methodological precedent has attracted sharp criticism on normative grounds. But both sides of the normative debate agree on the premise that the federal courts generally do not give precedential effect to interpretive methodology today.
This …
The Remand Power And The Supreme Court's Role, Aaron-Andrew P. Bruhl
The Remand Power And The Supreme Court's Role, Aaron-Andrew P. Bruhl
Faculty Publications
"Reversed and remanded." Or "vacated and remanded." These familiar words, often found at the end of an appellate decision, emphasize that an appellate court's conclusion that the lower court erred generally does not end the litigation. The power to remand for further proceedings rather than wrap up a case is useful for appellate courts because they may lack the institutional competence to bring the case to a final resolution (as when new factual findings are necessary) or lack an interest in the fact-specific work of applying a newly announced legal standard to the particular circumstances at hand. The modern Supreme …
The Judicial Reforms Of 1937, Barry Cushman
The Judicial Reforms Of 1937, Barry Cushman
William & Mary Law Review
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 …
First, We'll Neuter All The Judges, A. Benjamin Spencer
First, We'll Neuter All The Judges, A. Benjamin Spencer
Popular Media
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
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.
Communicating The Canons: How Lower Courts React When The Supreme Court Changes The Rules Of Statutory Interpretation, Aaron-Andrew P. Bruhl
Communicating The Canons: How Lower Courts React When The Supreme Court Changes The Rules Of Statutory Interpretation, Aaron-Andrew P. Bruhl
Aaron-Andrew P. Bruhl
No abstract provided.
How To Save The Supreme Court, Daniel Epps, Ganesh Sitaraman
How To Save The Supreme Court, Daniel Epps, Ganesh Sitaraman
Scholarship@WashULaw
The consequences of Justice Brett Kavanaugh’s Supreme Court confirmation are seismic. Justice Kavanaugh, replacing Justice Anthony Kennedy, completes a new conservative majority and represents a stunning Republican victory after decades of increasingly partisan battles over control of the Court. The result is a Supreme Court whose Justices are likely to vote along party lines more consistently than ever before in American history. That development gravely threatens the Court’s legitimacy. If in the future roughly half of Americans lack confidence in the Supreme Court’s ability to render impartial justice, the Court’s power to settle important questions of law will be in …
Communicating The Canons: How Lower Courts React When The Supreme Court Changes The Rules Of Statutory Interpretation, Aaron-Andrew P. Bruhl
Communicating The Canons: How Lower Courts React When The Supreme Court Changes The Rules Of Statutory Interpretation, Aaron-Andrew P. Bruhl
Faculty Publications
No abstract provided.
Defending The Majoritarian Court, Amanda Frost
Defending The Majoritarian Court, Amanda Frost
Articles in Law Reviews & Other Academic Journals
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
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.
Habeas Corpus--Federal Courts--Certiorari To United States Supreme Court As A State Remedy, S. F. B.
Habeas Corpus--Federal Courts--Certiorari To United States Supreme Court As A State Remedy, S. F. B.
West Virginia Law Review
No abstract provided.