Law Commons^™

Self-Intervention, Lumen N. Mulligan

Faculty Works

You cannot intervene in your own case, duh! Yet the United States Supreme Court granted certiorari on just this issue: Does Federal Rule of Civil Procedure 24(a)(2) allow state legislative leaders, seeking to represent the state’s sovereign interest, intervene when the attorney general is already representing the state’s sovereign interest. In this article, I contend that the text, history, and practice of Rule 24(a)(2) prohibits such “self-intervention.” I then explore how the fictive approach to state immunity established in Ex parte Young causes this confusion, while concluding that the doctrine, properly understood, focuses on real, not nominal, parties-in-interest. Next, I …

Empirical Study Of The Role Of The Chinese Guiding Case System In Chinese Law, Dong Yan, Jeffrey E. Thomas

Faculty Works

No abstract provided.

Purposivist Reasoning In Federal Civil Procedure, Lumen N. Mulligan, Emily Pennington

Faculty Works

This invited Article both reviews the Tenth Circuit’s stance on the circuit split addressing repleading counterclaims in amended answers and observes broader interpretive-approach trends in Federal Rules of Civil Procedure cases. In Sinclair Wyoming Refining Co. v. A & B Builders, Ltd., the Tenth Circuit holds that, absent prejudice to the opposing party, the failure to replead a counterclaim in an amended answer does not constitute abandonment; thus, taking the so-called permissive side of a circuit split on this question. In so doing, the Tenth Circuit adopts a purposivist approach to interpretation of the Federal Rules of Civil Procedure. In …

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 …

Uniform Enforcement Or Personalized Law? A Preliminary Examination Of Parking Ticket Appeals In Chicago, Randall K. Johnson

Faculty Works

This article is one in a series of papers that sets the record straight about the type, quality and quantity of information that U.S. cities may employ, in order to make more informed policy decisions. It does so, specifically, by examining information that is collected by the City of Chicago. The goal is to gauge the uniformity, as well as the relative cost-effectiveness, of the parking ticket appeals process. The article has six (VI) parts. Part I is the introduction, which sets the stage for a preliminary examination of the parking ticket appeals process in Chicago. Part II describes the …

Civil Rules Interpretive Theory, Lumen N. Mulligan, Glen Staszewski

Faculty Works

We claim that the proper method of interpreting the Federal Rules of Civil Procedure — civil rules interpretive theory — should be recognized as a distinct field of scholarly inquiry and judicial practice. Fundamentally, the Rules are not statutes. Yet the theories of statutory interpretation that are typically imported into Rules cases by the courts rely upon a principle of legislative supremacy that is inapplicable in this context. That said, we recognize the Rules as authoritative law that is generally amenable to a form of jurisprudential purposivism. Working from this newly elucidated normative foundation, we reject the Rules-as-statutes interpretive approach …

Dynamism In U.S. Pleading Standards: Rules, Interpretation, And Implementation, Jeffrey E. Thomas

Book Chapters

No abstract provided.

Institutional Competence And Civil Rules Interpretation, Lumen N. Mulligan, Glen Staszewski

Faculty Works

No abstract provided.

Who Wins Residential Property Tax Appeals?, Randall K. Johnson

Faculty Works

This article explains who wins residential property tax appeals in Cook County, Illinois. It does so by collecting and combining public sector data, which has been recently released by the Cook County Assessor. The article then uses this data to compute three statistics. Lastly, it contextualizes each statistic in order to determine if some townships, or groups of townships, win more appeals than expected.

The Supreme Court’S Regulation Of Civil Procedure: Lessons From Administrative Law, Lumen N. Mulligan, Glen Staszewski

Faculty Works

In this Article, we argue that the Supreme Court should route most Federal Rules of Civil Procedure issues through the notice-and-comment rulemaking process of the Civil Rules Advisory Committee instead of issuing judgments in adjudications, unless the case can be resolved solely through the deployment of traditional tools of statutory construction. While we are not the first to express a preference for rulemaking on civil procedure issues, we advance the position in four significant ways. First, we argue that the Supreme Court in the civil procedure arena is vested with powers analogous to most administrative agencies. Second, building upon this …

Jurisdiction By Cross-Reference, Lumen N. Mulligan

Faculty Works

State and federal law often cross-reference each other to provide a rule of decision. The difficulties attendant to these cross-referenced schemes are brought to the fore most clearly when a federal court must determine whether such bodies of law create federal question jurisdiction. Indeed, the federal courts have issued scores of seemingly inconsistent opinions on these cross-referential cases. In this article, I offer an ordering principle for these apparently varied, cross-referential, jurisdictional cases. I argue that the federal courts only take federal question jurisdiction over cross-referenced claims when they, from a departmental perspective, maintain declaratory authority over the cross-referenced law. …

An Expectation Of Empathy, Steve Leben

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No abstract provided.

Clear Rules - Not Necessarily Simple Or Accessible Ones, Lumen N. Mulligan

Faculty Works

In The Complexity of Jurisdictional Clarity, 97 VA. L. REV. 1 (2011), Professor Dodson argues that the traditional call for clear and simple rules über alles in subject matter jurisdiction is misplaced. In this response essay, I begin by arguing that Dodson, while offering many valuable insights, does not adequately distinguish between the separate notions of simplicity, clarity, and accessibility. Second, I note that crafting a clarity enhancing rule, even if complex and inaccessible, may be a more promising endeavor than the search for a regime that is at once clear, simple and accessible. In the third section, I contend …

Did The Madisonian Compromise Survive Detention At Guantanamo?, Lumen N. Mulligan

Faculty Works

In this essay, I take up the Court’s less heralded second holding in Boumediene v. Bush - that a federal habeas court must have the institutional capacity to find facts, which in Boumediene itself meant that a federal district court must be available to the petitioners. Although this has gone largely unnoticed, I contend that this holding is inconsistent with the Madisonian Compromise - the standard view that the Constitution does not require jurisdiction in any federal court, except the Supreme Court. In fact, it appears that the Court adopted Justice Story’s position that the Constitution requires vesting of jurisdiction …

A Unified Theory Of 28 U.S.C. Section 1331 Jurisdiction, Lumen N. Mulligan

Faculty Works

Title 28, section 1331 of the United States Code provides the jurisdictional grounding for the majority of cases heard in the federal courts, yet it is not well understood. The predominant view holds that section 1331 doctrine both lacks a focus upon congressional intent and is internally inconsistent. I seek to counter both these assumptions by re-contextualizing the Court's section 1331 jurisprudence in terms of the contemporary judicial usage of right (i.e., clear, mandatory obligations capable of judicial enforcement) and cause of action (i.e., permission to vindicate a right in court). In conducting this reinterpretation, I argue that section 1331 …

The Logic Of Legal Remedies And The Relative Weight Of Norms: Assessing The Public Interest In The Tort Reform Debate, Irma S. Russell

Faculty Works

This article explores the background principles of consistency and proportionality in legal rules and remedies. It identifies the relative strength of the interests of individuals and the public as the key to justifying the remedies available in different areas of law. Understanding the normative guidance of particular legal rules reveals the strength of society's judgment of the interests at stake in different remedies. For example, the principle of consistency generally means that a legal doctrine applying an objective measure of one's interest must apply a like-kind measure to all interests considered, absent some explicit and justifiable basis for different formulations. …

Venue In Missouri After Tort Reform, David J. Achtenberg

Faculty Works

Venue matters. Anyone who doubts it need only look to the venue wars waged in the Missouri Supreme Court during the last decades. Understandably, plaintiffs prefer unrestrictive venue rules so that they can file and try their cases in counties with plaintiff-friendly jury pools. Just as understandably, defendants prefer rules that restrict plaintiffs' ability to choose between multiple venues and, to the extent possible, rules that permit the defendant to select the counties in which they can be forced to defend their actions.

The passage of Missouri's 2005 Tort Reform Act represented an important legislative victory for defendants in this …

Procedural Fairness: A Key Ingredient In Public Satisfaction, Kevin Burke, Steve Leben

Faculty Works

No abstract provided.

The Trial Of Zacarias Moussaoui, Douglas O. Linder

Faculty Works

On the horrific morning of September 11, 2001, when planes crashed into buildings and fell from the sky, Zacarias Moussaoui was sitting in a jail in Minnesota facing immigration charges. Even if he had not been arrested three weeks earlier, when he raised suspicion by paying large sums to a flight training school to learn to pilot a Boeing 747 despite his never having piloted a small plane, it seems unlikely that Moussaoui would have been the twentieth hijacker on one of the four doomed planes. Nonetheless, largely because of the convenient fact that he was alive and in custody, …

Do Reverse Payment Settlements Violate The Antitrust Laws, Christopher M. Holman

Faculty Works

The term "reverse payment" has been used as shorthand to characterize a variety of diverse agreements between patent owners and alleged infringers that involve a transfer of consideration from the patent owner to the alleged infringer. Reverse payment settlements are particularly associated with drug patent challenges mounted by generic drug companies under the Hatch-Waxman Act. Many, including the Federal Trade Commission, would characterize these agreements as antitrust violations. However, courts have generally declined to find these agreements in violation of the antitrust laws based solely on the presence of a reverse payment.

This article begins in Section II with an …

The Evolution Of Mjp, Irma S. Russell

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This article examines the ABA revision to Model Rules 5.5 and 8.5 in light of today's legal world where representing clients in states outside the lawyer's state of licensure is commonplace, particularly in areas of practice that involve federal law, such as environmental law, and clients with far-flung property or business transactions in numerous jurisdictions. The article notes that although the revision to these rules represents the first step in a necessary liberalization of ethical rules and statutes to permit competent lawyers to service client needs efficiently and encourages more uniformity of approach, the rules and UPL statutes still create …

The Ethics 2000 Process: Revisions To The Aba Model Rules Approved By The Aba House Of Delegates, Irma S. Russell

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This article provides examples of the Ethics 2000 Commission's work and examines a few changes likely to affect lawyers practicing in the environmental arena.

Client Confidences And Public Confidence In The Legal Profession: Observations On The Aba House Of Delegates Deliberations On The Duty Of Confidentiality, Irma S. Russell

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This article sets forth points to encourage the ABA House of Delegates to reconsider proposed revisions to Model Rule 1.6 (b)(2) and (b)(3) and to reject any proposals to revert back to the former rule. Specifically, the article urges the delegates to: 1) be aware of absolutes and consider proportionality; 2) recognize lawyers as trustworthy decision makers; and 3) acknowledge the profession's responsibility to the public. The article suggests that the possibility of reverting to the former rule is radically out of step with the tradition of confidentiality in the American legal profession and with the rules of professional conduct …

Case Study Of Bad Faith Refusal To Settle: Doctrinal, Normative And Practical Analysis Of Missouri Law, Jeffrey E. Thomas

Faculty Works

No abstract provided.

Joinder Of Tort Claims In Divorce Actions, Barbara Glesner Fines

Faculty Works

No abstract provided.

Immunity Under 42 U.S.C. § 1983: Interpretive Approach And The Search For The Legislative Will, David J. Achtenberg

Faculty Works

The Supreme Court has long struggled with immunity under 42 U.S.C. § 1983. Section 1983 is the principal statutory vehicle used to remedy constitutional violations committed by state and local officials. Expansion or contraction of official immunity under the statute effectively decreases or increases officials' incentives to avoid those violations. A broader immunity doctrine will lead to more constitutional violations. However, it will also lead to a greater willingness to attempt potentially useful innovations whose constitutionality has not yet been determined. A narrower immunity doctrine will reduce the number of constitutional violations. However, it will reduce officials' willingness to experiment. …

Restoring The Common In The Law: Proposal For The Elimination Of Rules Prohibiting The Citation Of Unpublished Decisions In Kansas And The Tenth Circuit, Mark D. Hinderks, Steve A. Leben

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No abstract provided.

Rule 11 Sanctions: The Special Problem Of Local Counsel, Steve Leben

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No abstract provided.

A Synthesis And Integration Of Supreme Court Precedent Regarding The Regulatory Taking Of Land, John W. Ragsdale Jr

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In the post World War II era of rapid land development, emergent environmental problems, and heightened legislative response, the taking clause has proved to be the most pervasive and significant limitation on the power of government over private land usage. The dimensions and implications of this provision and the interpretive Supreme Court opinions have attracted the attention of numerous scholars whose efforts, usually, have been rather critical. The authors have often sought to question the logic, language and premises of fundamental opinions, to warn of the economic, moral and ecological consequences of portended judicial trends, to pose new taking tests …

Piercing The Corporate Veil: Do Corporations Provide Limited Personal Liability?, Robert C. Downs

Faculty Works

No abstract provided.