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Full-Text Articles in Law

One Good Plaintiff Is Not Enough, Aaron-Andrew P. Bruhl Dec 2017

One Good Plaintiff Is Not Enough, Aaron-Andrew P. Bruhl

Faculty Publications

This Article concerns an aspect of Article III standing that has played a role in many of the highest-profile controversies of recent years, including litigation over the Affordable Care Act, immigration policy, and climate change. Although the federal courts constantly emphasize the importance of ensuring that only proper plaintiffs invoke the federal judicial power, the Supreme Court and other federal courts have developed a significant exception to the usual requirement of standing. This exception holds that a court entertaining a multiple-plaintiff case may dispense with inquiring into the standing of each plaintiff as long as the court finds that one ...


Communicating The Canons: How Lower Courts React When The Supreme Court Changes The Rules Of Statutory Interpretation, Aaron-Andrew P. Bruhl Dec 2015

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.


Fletcherian Standing, Merits, And Spokeo V. Robins, Howard Wasserman Jan 2015

Fletcherian Standing, Merits, And Spokeo V. Robins, Howard Wasserman

Faculty Publications

This essay offers an exercise in wishful jurisdictional and procedural thinking. As part of a Supreme Court Roundtable on Spokeo, Inc. v. Robins, it argues for William Fletcher's conception of standing as an inquiry into the substantive merits of a claim and of whether the plaintiff has a valid cause of action. This approach is especially necessary in statutory cases; along with its constitutional power to create new rights, duties, and remedies, Congress should have a free hand in deciding who and how those rights and duties should be enforced. Spokeo, which involves a claim for damages for publication ...


Against Methodological Stare Decisis, Evan J. Criddle, Glen Staszewski Jun 2014

Against Methodological Stare Decisis, Evan J. Criddle, Glen Staszewski

Faculty Publications

Should federal courts give stare decisis effect to statutory interpretation methodology? Although a growing number of legal scholars have answered this question in the affirmative, this Essay makes the case against methodological stare decisis. Drawing on recent empirical studies of Congress’s expectations regarding statutory interpretation, we show that existing knowledge of Congress’s expectations is insufficient to settle on one consistent approach to statutory interpretation. Moreover, Congress has almost certainly changed its expectations over time, and this raises serious problems for methodological stare decisis from the perspective of faithful-agency theories. We argue further that many theories and doctrines of ...


Reverse Advisory Opinions, Neal Devins, Saikrishna B. Prakash Apr 2013

Reverse Advisory Opinions, Neal Devins, Saikrishna B. Prakash

Faculty Publications

No abstract provided.


Changed Circumstances: The Federal Rules Of Civil Procedure And The Future Of Institutional Reform Litigation After Horne V. Flores, Catherine Y. Kim Jan 2013

Changed Circumstances: The Federal Rules Of Civil Procedure And The Future Of Institutional Reform Litigation After Horne V. Flores, Catherine Y. Kim

Faculty Publications

No abstract provided.


Citizens United And The Roberts Court's War On Democracy, Gene Nichol Jan 2012

Citizens United And The Roberts Court's War On Democracy, Gene Nichol

Faculty Publications

No abstract provided.


Constitutional Branding, Michael J. Gerhardt Jan 2012

Constitutional Branding, Michael J. Gerhardt

Faculty Publications

No abstract provided.


State Debts & Federal Jurisdiction, John V. Orth Jan 2012

State Debts & Federal Jurisdiction, John V. Orth

Faculty Publications

No abstract provided.


"Extraordinary Circumstances": The Legacy Of The Gang Of 14 And A Proposal For Judicial Nominations Reform, Michael J. Gerhardt, Richard Painter Jan 2012

"Extraordinary Circumstances": The Legacy Of The Gang Of 14 And A Proposal For Judicial Nominations Reform, Michael J. Gerhardt, Richard Painter

Faculty Publications

No abstract provided.


Hybridizing Jurisdiction, Scott Dodson Dec 2011

Hybridizing Jurisdiction, Scott Dodson

Faculty Publications

Federal jurisdiction – the “power” of the court – is seen as something separate and unique. As such, it has a litany of special effects that define jurisdictionality as the antipode of nonjurisdictionality. The resulting conceptualization is that jurisdictionality and nonjurisdictionality occupy mutually exclusive theoretical and doctrinal space. In a recent Article in Stanford Law Review, I refuted this rigid dichotomy of jurisdictionality and nonjurisdictionality by explaining that nonjurisdictional rules can be “hybridized” with any – or even all – of the attributes of jurisdictionality.

This Article drops the other shoe. Jurisdictional rules can be hybridized, too, and in myriad forms. The result is ...


Horizontal Erie And The Presumption Of Forum Law, Michael Steven Green May 2011

Horizontal Erie And The Presumption Of Forum Law, Michael Steven Green

Faculty Publications

According to Erie Railroad v. Tompkins and its progeny, a federal
court interpreting state law must decide as the state’s supreme
court would. In this Article, I argue that a state court interpreting
the law of a sister state is subject to the same obligation. It must
decide as the sister state’s supreme court would.


Horizontal Erie is such a plausible idea that one might think it is
already established law. But the Supreme Court has in fact given
state courts significant freedom to misinterpret sister-state law. And
state courts have taken advantage of this freedom, by routinely ...


Defending The Nlrb: Improving The Agency's Success In The Federal Courts Of Appeals, Jeffrey M. Hirsch Jan 2010

Defending The Nlrb: Improving The Agency's Success In The Federal Courts Of Appeals, Jeffrey M. Hirsch

Faculty Publications

No abstract provided.


The Roberts Court And Access To Justice, Gene R. Nichol Jan 2009

The Roberts Court And Access To Justice, Gene R. Nichol

Faculty Publications

No abstract provided.


Justices As Economic Fixers: A Response To A Macrotheory Of The Court, Scott Baker, Adam Feibelman, William P. Marshall Jan 2009

Justices As Economic Fixers: A Response To A Macrotheory Of The Court, Scott Baker, Adam Feibelman, William P. Marshall

Faculty Publications

No abstract provided.


Circumventing Congress: How The Federal Courts Opened The Door To Impeaching Criminal Defendants With Prior Convictions, Jeffrey Bellin Dec 2008

Circumventing Congress: How The Federal Courts Opened The Door To Impeaching Criminal Defendants With Prior Convictions, Jeffrey Bellin

Faculty Publications

This Article spotlights the flawed analytical framework at the heart of the federal courts’ approach to one of the most controversial trial practices in American criminal jurisprudence — the admission of prior convictions to impeach the credibility of defendants who testify. As the Article explains, the flawed approach is a byproduct of the courts’ reliance on a five-factor analytical framework to implement the governing legal standard enacted by Congress in Federal Rule of Evidence 609. Tracing the evolution of the fivefactor framework from its roots in pre-Rule 609 case law, the Article demonstrates that the courts’ reinterpretation of the framework in ...


The New Religion, Michael J. Gerhardt Jan 2007

The New Religion, Michael J. Gerhardt

Faculty Publications

No abstract provided.


Super Precedent, Michael J. Gerhardt Jan 2006

Super Precedent, Michael J. Gerhardt

Faculty Publications

No abstract provided.


What's Old Is New Again, Symposium: The Role Of Judges In The 21st Century, Michael J. Gerhardt Jan 2006

What's Old Is New Again, Symposium: The Role Of Judges In The 21st Century, Michael J. Gerhardt

Faculty Publications

No abstract provided.


Why The Catholic Majority On The Supreme Court May Be Unconstitutional, Symposium On Catholicism And The Court, Michael J. Gerhardt Jan 2006

Why The Catholic Majority On The Supreme Court May Be Unconstitutional, Symposium On Catholicism And The Court, Michael J. Gerhardt

Faculty Publications

No abstract provided.


International Judicial Decisions, Domestic Courts, And The Foreign Affairs Power, A. Mark Weisburd Jan 2005

International Judicial Decisions, Domestic Courts, And The Foreign Affairs Power, A. Mark Weisburd

Faculty Publications

No abstract provided.


Who Judges The Judges?, John V. Orth Jan 2005

Who Judges The Judges?, John V. Orth

Faculty Publications

No abstract provided.


Judicial Selection By The Numbers, Michael J. Gerhardt Jan 2005

Judicial Selection By The Numbers, Michael J. Gerhardt

Faculty Publications

No abstract provided.


The Limited Path Dependency Of Precedent, Michael J. Gerhardt Jan 2005

The Limited Path Dependency Of Precedent, Michael J. Gerhardt

Faculty Publications

No abstract provided.


Prelude To Armageddon, Michael J. Gerhardt Jan 2005

Prelude To Armageddon, Michael J. Gerhardt

Faculty Publications

No abstract provided.


Merit V. Ideology, Michael J. Gerhardt Jan 2005

Merit V. Ideology, Michael J. Gerhardt

Faculty Publications

No abstract provided.


The Constitutional Limits To Court-Stripping, Michael J. Gerhardt Jan 2005

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

Faculty Publications

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 Jan 2004

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 Empty Promise Of Compassionate Conservatism: A Reply To Judge Wilkinson, William P. Marshall Jan 2004

The Empty Promise Of Compassionate Conservatism: A Reply To Judge Wilkinson, William P. Marshall

Faculty Publications

No abstract provided.


Judicial Selection As War, Michael J. Gerhardt Jan 2003

Judicial Selection As War, Michael J. Gerhardt

Faculty Publications

No abstract provided.