Law Commons^™

Kaleidoscopic Chaos: Understanding The Circuit Courts’ Various Interpretations Of § 2255’S Savings Clause, Jennifer L. Case

Jennifer L. Case

More than 65 years ago, Congress enacted a short statute (codified at 28 U.S.C. § 2255) to even the habeas corpus workload among the federal courts. That statute included a “Savings Clause,” which allows prisoners to challenge their convictions and sentences in a federal habeas petition when § 2255 is “inadequate or ineffective” for the task. Since that time—and with increasing frequency—the U.S. Courts of Appeals have developed wildly varying tests to determine when and how § 2255’s Savings Clause applies to prisoners’ attempts to bring federal habeas petitions under 28 U.S.C. § 2241.

In their attempts to understand the …

Bankruptcy Federalism: A Doctrine Askew, Margaret Howard

Lyman P. Q. Johnson

No abstract provided.

The Exclusionary Rule In Immigration Proceedings: Where It Was, Where It Is, Where It May Be Going, Irene Scharf

Irene Scharf

The case alerted me to the continuing issue concerning the treatment of alleged violations of Fourth Amendment rights in immigration court, with this article the result of research conducted relating thereto. Beyond reviewing the relevant views of the federal courts of appeals; the administrative tribunal that handles appeals of immigration court cases, the Board of Immigration Appeals (BIA); and even local immigration courts; I consider whether the jurisprudence has remained static since the Supreme Court's watershed opinion on the issue about twenty-five years ago. I also offer suggestions as to how to effectively, fairly, and efficiently resolve the issues raised …

Holdings, Dicta, And The Paradigms Of Precedent, Randy J. Kozel

Randy J Kozel

In United States v. Windsor, the Supreme Court invalidated a key provision of the federal Defense of Marriage Act. In doing so, it raised significant questions about the power of states to limit the institution of marriage to opposite-sex couples. That issue was not presented in Windsor itself, but Windsor’s reasoning and rhetoric have already begun to play a pivotal role in ensuing challenges to state laws. Determining the future effects of Windsor, or of any other Supreme Court decision, requires defining the scope of judicial precedent. One account of precedent is restrictive: Only a court’s holdings must …

The Law Of Nations As Constitutional Law, Anthony J. Bellia, Bradford R. Clark

Anthony J. Bellia

Courts and scholars continue to debate the status of customary international law in U.S. courts, but have paid insufficient attention to the role that such law plays in interpreting and upholding several specific provisions of the Constitution. The modern position argues that courts should treat customary international law as federal common law. The revisionist position contends that customary international law applies only to the extent that positive federal or state law has adopted it. Neither approach adequately takes account of the Constitution’s allocation of powers to the federal political branches in Articles I and II or the effect of these …

State Courts And The Interpretation Of Federal Statutes, Anthony J. Bellia

Anthony J. Bellia

Scholars have long debated the separation of powers question of what judicial power federal courts have under Article III of the Constitution in the enterprise of interpreting federal statutes. Specifically, scholars have debated whether, in light of Founding-era English and state court judicial practice, the judicial power of the United States should be understood as a power to interpret statutes dynamically or as faithful agents of Congress. This Article argues that the question of how courts should interpret federal statutes is one not only of separation of powers but of federalism as well. State courts have a vital and often …

The Alien Tort Statute And The Law Of Nations, Bradford R. Clark, Anthony J. Bellia Jr.

Anthony J. Bellia

Courts and scholars have struggled to identify the original meaning of the Alien Tort Statute (ATS). As enacted in 1789, the ATS provided "[t]hat the district courts... shall... have cognizance... of all causes where an alien sues for a tort only in violation of the law of nations or a treaty of the United States." The statute was rarely invoked for almost two centuries until, in the 1980s, lower federal courts began reading the statute expansively to allow foreign citizens to sue other foreign citizens for violations of modern customary international law that occurred outside the United States. In 2004 …

The Origins Of Article Iii "Arising Under" Jurisdiction, Anthony J. Bellia

Anthony J. Bellia

Article III of the Constitution provides that the judicial Power of the United States extends to all cases arising under the Constitution, laws, and treaties of the United States. What the phrase arising under imports in Article III has long confounded courts and scholars. This Article examines the historical origins of Article III arising under jurisdiction. First, it describes English legal principles that governed the jurisdiction of courts of general and limited jurisdiction--principles that animated early American jurisprudence regarding the scope of arising under jurisdiction. Second, it explains how participants in the framing and ratification of the Constitution understood arising …

State Courts And The Making Of Federal Common Law, Anthony J. Bellia

Anthony J. Bellia

The authority of federal courts to make federal common law has been a controversial question for courts and scholars. Several scholars have propounded theories addressing primarily whether and when federal courts are justified in making federal common law. It is a little-noticed phenomenon that state courts, too, make federal common law. This Article brings to light the fact that state courts routinely make federal common law in as real a sense as federal courts make it. It further explains that theories that focus on whether the making of federal common law by federal courts is justified are inadequate to explain …

Junk Philosophy Of Science?: The Paradox Of Expertise And Interdisciplinarity In Federal Courts, David S. Caudill, Richard E. Redding

David S Caudill

No abstract provided.

Bankruptcy Federalism: A Doctrine Askew, Margaret Howard

Margaret Howard

No abstract provided.

A Constitutional Theory Of Habeas Power, Lee B. Kovarsky

Lee Kovarsky

Modern habeas corpus law generally favors an idiom of individual rights, but the Great Writ’s central feature is judicial power. Throughout the seventeenth-century English Civil Wars, the Glorious Revolution, and the war in the American colonies, the habeas writ was a means by which judges consolidated authority over the question of what counted as 'lawful' custody. Of course, the American Framers did not simply copy the English writ - they embedded it in a Constitutional system of separated powers and dual sovereignty. 'A Constitutional Theory of Habeas Power' is an inquiry into the newly-minted principle that the federal Constitution guarantees …

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

Catherine Y Kim

Since Brown v. Board of Education, the federal courts have played an expansive role in institutional reform litigation to restructure state and local government institutions such as public school systems, prisons, law enforcement agencies, and health care facilities accused of violating individual rights. The 2009 decision in Horne v. Flores, in which a five-four majority of the Supreme Court employed a novel interpretation of the Federal Rules of Civil Procedure to substantially enlarge government-defendants’ ability to terminate ongoing judicial oversight in these types of cases, threatens the future viability of this model of social reform. The propriety of institutional reform …

The Exceptions Clause As A Structural Safeguard, Tara Grove

Tara L. Grove

Scholars have long viewed the Exceptions Clause of Article III as a serious threat to the Supreme Court’s central constitutional function: establishing definitive and uniform rules of federal law. In this Article, I argue that the Clause has been fundamentally misunderstood. The Exceptions Clause, as employed by Congress, serves primarily to facilitate, not to undermine, the Supreme Court’s constitutional role. Drawing on recent social science research, I assert that Congress has a strong incentive to use its control over federal jurisdiction to promote the Court’s role in settling disputed federal questions. Notably, this argument has considerable historical support. When the …

In Search Of A Forum For The Families Of The Guantanamo Disappeared, Peter Honigsberg

Peter J Honigsberg

The United States government has committed grave human rights violations by disappearing people during the past decade into the detention camps in Guantanamo Bay, Cuba. And for nearly thirty years, beginning with a 1983 decision from a case arising in Uruguay, there has been a well-developed body of international law establishing that parents, wives and children of the disappeared suffer torture, or cruel, inhuman or degrading treatment (CID).

This paper argues that the rights of family members were severely violated when their loved ones were disappeared into Guantanamo. Family members of men disappeared by the United States have legitimate claims …

The Timeliness Of Removal And Multiple-Defendant Lawsuits, Paul Lund

Paul Lund

Although the procedure for removing cases from state to federal court has existed for nearly 225 years, removal remains one of the most controversial aspects of federal jurisdictional law. Each year, more than 30,000 civil cases are removed from state to federal court, and many of those cases involve more than one defendant. One of the most frequently litigated issues in these cases has involved when the notice of removal must be filed. Prior to a recent amendment, the statute governing removal, 28 U.S.C. § 1446(b), required that a notice of removal be filed within thirty days of service on …

Jurisdiction, Abstention, And Finality: Articulating A Unique Role For The Rooker-Feldman Doctrine, Dustin Buehler

Dustin Buehler

Federal courts frequently confuse the Rooker-Feldman doctrine with Younger abstention and preclusion law, often using these doctrines interchangeably to dismiss actions that would interfere with state court proceedings. For years, scholars argued that the Supreme Court should alleviate this confusion by abolishing the Rooker-Feldman doctrine altogether. The Court recently refused to so, however. In Exxon Mobil Corp. v. Saudi Basic Industries Corp. and Lance v. Dennis, the Court reaffirmed Rooker-Feldman’s vitality, and held that the doctrine plays a unique role, completely separate from abstention and preclusion rules. And yet these decisions leave a key question unanswered: exactly how does Rooker-Feldman …

The Psychology Of Procedural Justice In The Federal Courts, Rebecca Hollander-Blumoff

Rebecca Hollander-Blumoff

This interdisciplinary article examines our federal court system from the perspective of the psychology of procedural justice – that is, subjective perceptions about the fairness of process. The article considers some of the central features of civil litigation from the standpoint of the psychology of procedural justice, highlighting some of the aspects of the system that are likely to increase perceptions of fair process, and exploring, conversely, rules and practices that may decrease those perceptions. The article focuses on procedural justice in two contexts: basic rules and practices of civil procedure and more complex federal court doctrines that involve 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 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 …

Original Habeas Redux, Lee Kovarsky

Lee Kovarsky

This article explores what is perhaps the Supreme Court’s most exotic appellate power— its authority to issue (inaptly-named) “original” writs of habeas corpus. Although I have been working on Original Habeas Redux for some time, the Troy Davis case has recently thrust this topic into the national spotlight. In Davis (2009), the Supreme Court exercised, for the first time in over forty years, its power to transfer an original habeas petition to a district court for merits adjudication. Having collected and tabulated two decades of new data, I argue that Davis is not a blip in an otherwise constant state …

The State-Created Danger Doctrine In Domestic Violence Cases: Do We Have A Solution In Okin V. Village Of Cornwall-On-Hudson Police Department?, Atinuke O. Adediran

Atinuke Adediran

Home Is Where The Hq Is: Corporate Citizenship Following The Supreme Court's Decision In Hertz V. Friend, Sean-Patrick Wilson, Keena M. Hausmann, Paul A. Rosenthal

Sean-Patrick Wilson

On February 23, 2010, the United States Supreme Court released its decision in the case of Hertz Corp. v. Friend, 559 U.S. ___ (2010), no. 08-1107 (“Hertz”). Th Hertz case represents the only time the Supreme Court has addressed the question of where a business’s “principal place of business” is located for purposes of determining diversity jurisdiction. The Court’s ruling is certain to have significant ramifications for American corporations, as it determines when corporations can be sued in federal court (as they might prefer), or in plaintiff-friendly state courts. As the most authoritative case discussing diversity jurisdiction for corporations today, …

Original Habeas Redux, Lee B. Kovarsky

Lee Kovarsky

In "Original Habeas Redux," I map the modern dimensions of the Supreme Court’s most exotic jurisdiction—the original habeas writ. The Court has not issued such relief since 1925 and, until recently, had not ordered a case transferred pursuant to that authority in over fifty years. In August 2009, by transferring a capital prisoner’s original habeas petition to a federal district court rather than dismissing it outright, In re Davis abruptly thrust this obscure power back into mainstream legal debate over both the death penalty and the Supreme Court’s appellate jurisdiction. Scrambling to understand how the authority has evolved since its …

The Structural Safeguards Of Federal Jurisdiction, Tara L. 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 …

An Originalist Theory Of Precedent: The Privileged Place Of Originalist Precedent, Lee Strang

Lee J Strang

In this Article, I show that originalism retains a robust role for originalist precedent thereby enabling originalism to fit our legal practice and appropriate the normative attractiveness of stare decisis. This Article therefore fills a prominent gap in originalist theory.

First, I briefly review the debate in originalism over the role of constitutional precedent.

Second, I describe how participants in our legal practice can distinguish between originalist and nonoriginalist precedent using a standard called Originalism in Good Faith. Under Originalism in Good Faith, precedents that are a good faith attempt to articulate and apply the Constitution’s original meaning, are originalist …

Judging Cercla: An Empirical Analysis Of Circuit Court Decision-Making, Clifford Chad Henson

Clifford Chad Henson

Abstract: Political scientists, and increasingly legal scholars, have become skeptical of judges’ attempts to explain decisions based exclusively on applying fact to law, and have attempted to identify factors that influence judicial decision-making. This study isolates a set of cases dealing with the Comprehensive Environmental Response, Compensation, and Liability Act of 1980 and identifies variable sets corresponding to factors one would expect to be significant under competing models of judicial decision-making. While both the legal and extra-legal model independently explain some judicial decision-making, the legal model has more explanatory power and adds significantly to the explanatory power of the extra-legal …

Who Watches The Watchmen? 'Vigilant Doorkeeping,' The Alien Tort Statute, & Possible Reform, Keith A. Petty

Keith A. Petty

The Alien Tort Statute (ATS) allows alien plaintiffs to file civil actions in U.S. district courts for torts violating the law of nations or U.S. treaties. After the 2nd Circuit’s Filartiga decision in 1980, the debate began as to whether the ATS was a useful tool against human rights violators or an intrusion into U.S. foreign relations. In 2004, the Supreme Court in Sosa v. Alvarez-Machain resolved some of the questions left open by Filartiga.

Sosa concluded that ATS claims must be limited to law of nations violations as well defined as those recognized in 1789. The Court tasked the …

"Streamlining" The Rule Of Law: How The Department Of Justice Is Undermining Judicial Review Of Agency Action, Shruti Rana

Shruti Rana

Judicial review of administrative decision making is an essential institutional check on agency power. Recently, however, the Department of Justice dramatically revised its regulations in an attempt to insulate its decision making from public and federal court scrutiny. These “streamlining” rules, carried out in the name of national security and immigration reform, have led to a breakdown in the rule of law in our judicial system. While much attention has been focused on the Department of Justice’s recent attempts to shield executive power from the reach of Congress, its efforts to undermine judicial review have so far escaped such scrutiny. …

Where's The Party: Do Class Action Plaintiffs Really Prefer State Courts?, Neil J. Marchand

Neil J. Marchand

Scholars and interest groups have discussed litigants’ behavior in the class action context. This paper uses empirical data to determine whether class action plaintiffs actually prefer to litigate their suits in state courts. Despite well-reasoned conjectures on the subject, to date there is a paucity of empirical data on class action litigation, especially at the state court level. This scarcity has thwarted analysis of the likelihood of class certification in the state courts, the Class Action Fairness Act of 2005’s (CAFA) total impact on the judiciary, and the predictability of class action litigation. This study aims to start filling the …