Law Commons^™

A State's Power To Enter Into A Consent Decree That Violates State Law Provisions: What "Findings" Of A Federal Violation Are Sufficient To Justify A Consent Decree That Trumps State Law?, David W. Swift

ExpressO

In the last forty years federal courts have played a prominent role in reshaping our public institutions. And while some scholars question the efficacy of these structural injuctions, the authority of federal courts to order such relief is generally unquestioned. What is open to debate, however, is whether state officials can agree to a remedy they would not have had the authority to order themselves; and if so, to what extent must an underlying constitutional violation be proved so as to justify the remedy?

This article discusses the competing theories and concludes that a remedy that violates state law may …

Can A Bankrupt Company Assign Its Patent License To The Highest Bidder, Even When The License Itself Forbids Assignment? Why Everex Systems, Inc. V. Cadtrak Corp. Gives An Unconvincing Answer, Matthew D. Siegel

ExpressO

A patent licensee that declares bankruptcy will often want to assign its rights under the license to another party in exchange for much-needed cash. The Bankruptcy Code generally allows debtors to assign executory contracts, including patent licenses, in this way. Indeed, the Code permits debtors to assign a contract even if the contract itself contains a “no-assign” clause, i.e., a clause expressly forbidding assignment. But there is an exception: The Code will defer to certain kinds of otherwise applicable non-bankruptcy law that would normally prevent the contract from being assigned. In particular, the Code will not allow assignment by a …

Another Limit On Federal Court Jurisdiction? Immigrant Access To Class-Wide Injunctive Relief, Jill E. Family

ExpressO

This article examines a statute that may embody another limit on the power of the federal courts. The Illegal Immigration Reform and Immigrant Responsibility Act of 1996 (IIRIRA) implemented sweeping changes that substantially restrict federal court review of administrative immigration decisions. One provision implemented as a part of IIRIRA, 8 U.S.C. § 1252(f)(1), appears, at least at first glance, to prohibit courts from issuing class-wide injunctive relief in immigration cases. Such a restriction would be significant because federal courts have issued class-wide injunctions in the past to stop unconstitutional immigration practices and policies of the federal government. The Supreme Court …

Dead Men Telling Tales - A Policy-Based Proposal For Survivability Of Qui Tam Actions Under The Civil False Claims Act, Vickie J. Williams

ExpressO

The civil False Claims Act is a powerful tool used by both the federal government and private citizens, under the statutes "qui tam" or "whistleblower" provisions, to fight fraud against the government. Use of the statute has continually risen in recent years, and recoveries under the statute are in the billions of dollars. The unique relationship between a private citizen whistleblower and the government who both have an interest in the case raises many interesting procedural and substantive issues of federal law. This article proposes an answer to one of these questions. The article proposes that a whistleblower suit survives …

A Positive Theory Of Universal Jurisdiction, Eugene Kontorovich

ExpressO

Academic discussions of universal jurisdiction (“UJ”) have been almost entirely normative, focusing on what UJ “should” be in an ideal world. This Article breaks with the normative approach and analyzes UJ from a positive perspective, drawing on historical evidence and rational choice models to understand what UJ has in fact been and what it can be.

Piracy was for centuries the only UJ offense. This Article begins by isolating the characteristics of piracy that made it uniquely suitable for UJ. While these characteristics show why UJ over piracy would cause fewer problems than UJ over other crimes, they still fail …

The Continuing Showdown Over Who Should Regulate Amusement Attraction Safety: A Critical Analysis Of Why Fixed-Site Amusement Attraction Safety Should Remain State-Governed. , Chad Emerson

ExpressO

No abstract provided.

The Evolution Of Sherman Act Jurisdiction: A Roadmap For Competitive Federalism, D. Bruce Johnsen

ExpressO

Recent Supreme Court decisions confirm for the first time in over six decades that federal regulatory authority under the Commerce Clause truly is limited. These decisions coincide with an increasing appreciation among scholars and jurists for the concept of competitive federalism. This paper derives the implications of competitive federalism for the evolution of federal jurisdiction over trade restraints under the Sherman Antitrust Act (1890). It provides a clear and substantively reasoned jurisdictional test based on the analysis of geographic market power familiar to antitrust scholars, practitioners, and regulators in evaluating horizontal mergers. To be subject to federal antitrust jurisdiction under …

The Market For Justice, The "Litigation Explosion," And The "Verdict Bubble": A Closer Look At Vanishing Trials, Frederic Nelson Smalkin, Frederic Nelson Chancellor Smalkin

ExpressO

This article takes a fresh look at the increasingly discussed topic of the scarcity of civil cases reaching trial in the Article III system. The number of cases tried declined by more than one-fourth in the decade from 1989-1999, and the decline continued at about the same rate to the end of the latest year for which statistics are available, 2002, while ADR (particularly arbitrations) skyrocketed.

The authors examine the history of competing English courts (particularly Common Pleas and King's Bench) for signs that, in fact, market competition can arise among dispute-resolving bodies. They also apply economic analysis to the …