Law Commons^™

Transtemporal Separation Of Powers In The Law Of Precedent, Randy Beck

Randy Beck

The rule of stare decisis creates a presumption that a court’s ruling on a legal question remains binding in later decisions by the same court or hierarchically inferior courts. This presumption promotes stability in the law and protects reliance interests. Decisions that narrowly construe or overrule prior opinions can therefore seem like unprincipled threats to the rule of law.

This article seeks to highlight some countervailing themes in the case law, showing that stability and the protection of reliance interests are not the exclusive concerns underlying the law of precedent. The relevant doctrine attempts to balance these objectives with competing …

The Principle Of Complementarity In The Origins Of Federal Civil Rights Enforcement, 1866-1871, Matthew A. Smith

Matthew A Smith

When the Rome Statute of the International Criminal Court was adopted in 1998, it was praised for its potential to ensure the punishment of international crimes without subjecting states to overzealous international prosecution. The Statute’s careful balance of individual security and sovereign autonomy—achieved by employing a legal concept known as complementarity—is credited as one of its core innovations. However, complementarity’s historical roots run deeper than commentators on the Rome Statute have recognized: complementarity also played a central role over a hundred years earlier in the United States Congress’s efforts to enforce the civil rights of United States citizens. This article …

The Article Ii Safeguards Of Federal Jurisdiction, Tara L. Grove

Tara L. Grove

Jurisdiction stripping has long been treated as a battle between Congress and the federal judiciary. Scholars have thus overlooked the important (and surprising) role that the executive branch has played in these jurisdictional struggles. I seek to fill that void. Drawing on two strands of social science research, I argue that the executive branch has a strong incentive to use its constitutional authority over the enactment and enforcement of federal law to oppose jurisdiction-stripping measures. Notably, this structural argument has considerable historical support. The executive branch has repeatedly opposed jurisdiction-stripping proposals in Congress. That has been true even when the …

The Article Ii Safeguards Of Federal Jurisdiction, Tara L. Grove

Tara L. Grove

Jurisdiction stripping has long been treated as a battle between Congress and the federal judiciary. Scholars have thus overlooked the important (and surprising) role that the executive branch has played in these jurisdictional struggles. I seek to fill that void. Drawing on two strands of social science research, I argue that the executive branch has a strong incentive to use its constitutional authority over the enactment and enforcement of federal law to oppose jurisdiction-stripping measures. Notably, this structural argument has considerable historical support. The executive branch has repeatedly opposed jurisdiction-stripping proposals in Congress. That has been true even when the …

The Path Of Posner's Pragmatism, Edward Cantu

Edward Cantu

It is no secret that formalist methodologies like originalism are not nearly as scientific as they pretend to be. Banking on this fact, pragmatism offers a prescriptive alternative: instead of expending intellectual energy attempting “fidelity” to antecedent “authority” (precedent, Framers’ intent, etc.) judges should embrace their inevitable roles as de facto policy makers, and focus on producing the best social results they can through the cases they decide. The article discusses the current state of legal pragmatism in the form espoused by its chief proponent Judge Richard Posner, and asks whether it has proven itself capable of contributing anything useful …

Agencies Interpreting Courts Interpreting Statutes: The Deference Conundrum Of A Divided Supreme Court, Robin K. Craig

Robin K. Craig

Plurality decisions from the U.S. Supreme Court demand interpretation, especially because they tend to occur when the Court faces important but divisive legal issues. Most courts, agencies, and scholars have assumed that federal agencies are in no better position than the lower federal courts when confronted with a potentially precedential Supreme Court plurality decision—that is, that the agency must construe the Justices’ various opinions in search of a controlling rationale. In so doing, however, the agency eschews any claim to Chevron deference, because it is no longer implementing a statute pursuant to congressionally delegated authority. Instead, it is merely an …

“Buy Stock In The Gpo”? An Empirical Analysis Of How United States V. Mead Corp. Increased The Use Of Informal Rulemaking By Federal Agencies, Ryan T. Holt

Ryan T. Holt

In the dynamic field of administrative law, no case has received more attention over the past ten years than United States v. Mead Corp., in which the Supreme Court created a threshold requirement for federal-agency action to receive Chevron deference. But despite this focus from courts and commentators, one of that case’s major implications has thus far escaped the spotlight of analysis: To what extent has Mead affected agencies’ choice of policymaking device? In an excoriating dissent, Justice Scalia forewarned that Mead would precipitate an undesirable increase in informal (so-called “notice-and-comment”) rulemaking. However, whether Mead has increased informal rulemaking over …

Interpreting Judicial Interpretations Of The Criminal Statutes Of The Trafficking Victims Protection Act: Ten Years Later, Mohamed Mattar

Mohammad Mattar

The Trafficking Victims Protection Act (TVPA) established for the first time the crime of trafficking in persons. This article will analyze court cases that have been decided under the TVPA. The article will show that American courts, relying upon the text of the criminal statutes of the TVPA, as well as the findings of Congress, have broadened the interpretation of the offenses recognized under the Act to expand criminal liability, whether in cases of sex trafficking or labor trafficking. The article will also address cases in which the TVPA was challenged on constitutional grounds and whether it may apply on …

Treaties And The Constitution: Enforcing Treaties Against The States, David Sloss

David Sloss

Since the end of the Cold War, the nation’s leading foreign affairs scholars have debated issues involving the domestic application of treaties. The debate implicates fundamental constitutional questions concerning federalism, separation of powers, and individual rights. Central to the debate is the distinction between self-executing and non-self-executing treaties. Despite deep ideological divisions between nationalists and transnationalists, partisans on both sides agree on two points: first, that the “intent of the treaty makers” is the touchstone for self-execution analysis; and second, that Chief Justice Marshall applied the intent-based doctrine in his seminal opinion in Foster v. Neilson. The consensus view is …

Compensating Market Value Losses: Rethinking The Theory Of Damages In A Market Economy, Steven L. Schwarcz

Steven L Schwarcz

The BP Gulf oil spill and the Toyota car recalls have highlighted an important legal anomaly that has been overlooked by scholars—judicial inconsistency and confusion in ruling whether to compensate for the loss in market value of wrongfully affected property. This article seeks to understand the anomaly and, in the process, build a stronger foundation for enabling courts to decide when—and in what amounts—to award damages for market value losses. To that end, the article analyzes the normative rationales for generally awarding damages, adapting those rationales to derive a theory of damages that not only covers market value losses of …

A Crowning Achievement In Protecting High Ranking Officials From Unreasonable Depositions: The Impact Of The Crown Central Test, Scott A. Mager

scott a mager

In an increasingly litigious society, the attempt to first set depositions of high-ranking corporate executives, who are often referred to as “apex officials,” has become commonplace. While these executives rarely have personal knowledge of the facts and issues surrounding a given case, broad-stroked claims against parent companies and lax discovery rules seem to serve as a launching pad to harass executives and extort settlements through threats of—and in many cases the actual taking of—depositions from chief executive officers, chief operating officers, chief financial officers, or other apex executives. In recent years, courts across the country have sought to articulate the …

Treaties And The Constitution: Enforcing Treaties Against The States, David Sloss

David Sloss

Since the end of the Cold War, the nation’s leading foreign affairs scholars have debated issues involving the domestic application of treaties. The debate implicates fundamental constitutional questions concerning federalism, separation of powers, and individual rights. Central to the debate is the distinction between self-executing and non-self-executing treaties. Despite deep ideological divisions between nationalists and transnationalists, partisans on both sides agree on two points: first, that the “intent of the treaty makers” is the touchstone for self-execution analysis; and second, that Chief Justice Marshall applied the intent-based doctrine in his seminal opinion in Foster v. Neilson. The consensus view is …

In Defense Of The Substance-Procedure Dichotomy, Jennifer S. Hendricks

Jennifer S. Hendricks

John Hart Ely famously observed, “We were all brought up on sophisticated talk about the fluidity of the line between substance and procedure,” but for most of Erie’s history, the Supreme Court has answered the question “Does this state law govern in federal court?” with a “yes” or a “no.” Beginning, however, with Gasperini v. Center for Humanities, and continuing with Semtek v. Lockheed and Shady Grove v. Allstate, a shifting coalition of justices has pursued a third path. Instead of declaring state law applicable or inapplicable, they have claimed for themselves the prerogative to fashion law that purportedly accommodates …

The Created, The Fallen, And The Redeemed—The Symbolism Of The Federal Rules Of Evidence, Christopher G. Hastings, Nelson P. Milller, Curt A. Benson

Christopher G Hastings

The Federal Rules of Evidence, taken as a whole, represent an ethical system—not just norms, values, or cultural constructs but, moreover, a genuine way of comprehending the world consistent with our best understanding of how it would, if not constrained, truly operate. Underlying each rule are assumptions about the nature and dispositions of lawyers, clients, witnesses, jurors, and judges, as well as the nature of evidence itself. Those assumptions symbolize what the rules’ promulgators understand to be the imperatives of justice in a system peopled by the created, the fallen, and the redeemed. Citing each of the 67 Federal Rules …

Judicial Takings, Judicial Speech, And Doctrinal Acceptance Of The Model Of The Judge As Political Actor, William P. Marshall

Faculty Publications

No abstract provided.

Progressive Constitutionalism, Originalism, And The Significance Of Landmark Decisions In Evaluating Constitutional Theory, William P. Marshall

Faculty Publications

No abstract provided.

Towards An Understanding Of Litigation As Expression: Lessons From Guantánamo, Kathryn A. Sabbeth

Faculty Publications

No abstract provided.

Elections Matter, Michael J. Gerhardt

Faculty Publications

No abstract provided.

The Evolving International Judiciary, Karen J. Alter

Faculty Working Papers

This article explains the rapid proliferation in international courts first in the post WWII and then the post Cold War era. It examines the larger international judicial complex, showing how developments in one region and domain affect developments in similar and distant regimes. Situating individual developments into their larger context, and showing how change occurs incrementally and slowly over time, allows one to see developments in economic, human rights and war crimes systems as part of a longer term evolutionary process of the creation of international judicial authority. Evolution is not the same as teleology; we see that some international …

The Global Spread Of European Style International Courts, Karen J. Alter

Faculty Working Papers

Europe created the model of embedded international courts (IC), where domestic judges work with international judges to interpret and apply international legal rules that are also part of national legal orders. This model has now diffused around the world. This article documents the spread of European-style ICs: there are now eleven operational copies of the European Court of Justice (ECJ), three copies of the European Court of Human Rights, and a handful of additional ICs that use Europe's embedded approach to international law. After documenting the spread of European-style ICs, the article then explains how two regions chose European style …

The Oberlin Fugitive Slave Rescue: A Victory For The Higher Law, Steven Lubet

Faculty Working Papers

This article tells the story of the Oberlin fugitive slave rescue and the ensuing prosecutions in federal court. The trial of rescuer Charles Langston marked one of the first times that adherence to "higher law" was explicitly raised as a legal defense in an American courtroom. The article is adapted from my book -- Fugitive Justice: Runaways, Rescuers, and Slavery on Trial -- which tells this story (and several others) in much more detail.

In the fall of 1859, John Price was a fugitive slave living in the abolitionist community of Oberlin, Ohio. He was lured out of town and …

Rules, Standards, And The Model Business Corporation Act, Michael P. Dooley

Law and Contemporary Problems

No abstract provided.

Soldier Suicides And Outcrit Jurisprudence: An Anti-Subordination Analysis, Olympia Duhart

Faculty Scholarship

No abstract provided.

Limitations Imposed On The Dual Sovereignty Doctrine By Federal And State Governments, Thomas White

Thomas White

Because the dual sovereignty doctrine permits multiple prosecutions of an individual by state and federal governments for essentially the same conduct, the increasing federalization of criminal law has marginalized much of the double jeopardy protection afforded by the Constitution. The Supreme Court’s admonitions to the federal government to judiciously exercise the ability to conduct subsequent prosecutions under federal law following state prosecutions led to the Justice Department’s 1959 creation of the Petite doctrine which limits and prioritizes prosecutions if overlapping jurisdiction exists. Over half of the states, at one time, limited or prohibited subsequent prosecutions and half still do. This …

Judicial Discretion In Constitutional Cases, Todd E. Pettys

Todd E. Pettys

A damaging dichotomy is hindering the nation’s ability to talk intelligently and constructively about the constitutional work of the courts. The “legitimacy dichotomy” holds that, when adjudicating constitutional disputes, judges either obey the sovereign people’s determinate constitutional instructions or illegitimately trump the sovereign people’s value judgments with their own. The legitimacy dichotomy leaves little or no room for the possibility that an array of conflicting interpretations of the Constitution might be reasonably available to a judge; it leaves little or no room, in other words, for judicial discretion. This article begins by examining the legitimacy dichotomy from three different vantage …

Prosecutorial Accountability After Connick V. Thompson, George Weiss

George Weiss

Both recent Supreme Court decisions such as Van de Kamp v. Goldstein and Connick v. Thompson, as well as newspaper incidents such as the prosecuotrial misconduct of Michael Nifong and the prosecutor of the Ted Stevens case, have brought renewed attention to the issue of prosecutorial accountability. Though many have, in the past, lamented or tired to measure prosecutorial misconduct, this article argues that the theory of the Connick case (failure to train prosecutors liability under section 1983), while failing to in itself represent a new method of accountability, (failure to respond and discipline prosecutors) tweaking Connick's theory slightly may …

A More Promising Promised Land: Israel Copes With An Influx Of Asylum Seekers By Implementing The 1951 Convention Relating To The Status Of Refugees And The 1967 Protocol, Aliyah M. Phillips

Aliyah M Phillips

This Comment addresses the State of Israel’s most recent actions in coping with a mass influx of African asylum seekers, and whether those actions represent compliance with the 1951 Convention Relating to the Status of Refugees (“1951 Convention”), and the 1967 Protocol. Past scholarship has criticized Israel’s response to the influx, focusing on a lack of compliance. By examining Israel’s most recent practices with regard to asylum seekers, this Comment takes a novel and nuanced approach to identifying Israel’s compliance with the 1951 Convention. The argument set forth in this Comment operates from the presumption that a state’s compliance with …

The Medical Device Federal Preemption Trilogy: Salvaging Due Process For Injured Patients, Demetria D. Frank-Jackson

Demetria D Frank-Jackson

Ignoring over a century of tort law precedence, ultimately leaving thousands of people all over the country injured by medical devices without remedy, the prevailing jurisprudence on medical device federal preemption is both current and relevant. Due to the inherent ambiguity of the preemption provision Medical Device Amendments of 1976, where contemporary medical device litigation had its beginnings, the regulatory nature of common law tort claims against medical device manufacturers has been overwhelming called into question. Given this socio-judicial backdrop, the Article focuses on two rapidly developing areas of law: (1) preemption of certain medical device claims following the U.S. …

Legal Ethics And Campaign Contributions: The Professional Responsibility To Pay For Justice, Keith Swisher

Keith Swisher

Lawyers as johns, and judges as prostitutes? Across the United States, attorneys (“johns,” as the analogy goes) are giving campaign money to judges (“prostitutes”) and then asking those judges for legal favors in the form of rulings for themselves and their clients. Despite its pervasiveness, this practice has been rarely mentioned, much less theorized, from the attorneys’ ethical point of view. With the surge of money into judicial elections (e.g., Citizens United v. FEC), and the Supreme Court’s renewed interest in protecting justice from the corrupting effects of campaign money (e.g., Caperton v. A.T. Massey Coal Co.), these conflicting currents …

Decision-Making Patterns At The First Trial Of International Criminal Court: A Perspective On The Icc, Aldo Zammit Borda

Aldo Zammit Borda

The first trials of the International Criminal Tribunal for the Former Yugoslavia (“ICTY”) and the International Criminal Tribunal for Rwanda (“ICTR”) resulted in convictions of the accused. This Article seeks to understand this observation by applying new institutionalist perspectives to decision-making processes of international criminal courts and tribunals. This Article argues that the first trials of such courts are affected by a learning curve and should be differentiated from other trials because of, inter alia, the novelty of the proceedings, the absence of previous jurisprudence, and the need to develop modi operandi, often from scratch. It then discusses decision-making patterns …