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Advisory Opinions And The Problem Of Legal Authority, Christian R. Burset
Advisory Opinions And The Problem Of Legal Authority, Christian R. Burset
Journal Articles
The prohibition against advisory opinions is fundamental to our understanding of federal judicial power, but we’ve misunderstood its origins. Discussions of the doctrine begin not with a constitutional text or even a court case, but a letter in which the Jay Court rejected President Washington’s request for legal advice. Courts and scholars have offered a variety of explanations for the Jay Court’s behavior. But they all depict the earliest Justices as responding to uniquely American concerns about advisory opinions.
This Article offers a different explanation. Drawing on previously untapped archival sources, it shows that judges throughout the anglophone world—not only …
Equity, Samuel L. Bray
Equity, Samuel L. Bray
Book Chapters
From the Publisher
Chapter 2
How has equity been received in the United States? Two themes stand out. One is that of ‘nice adjustment’: the case-specific adjustment of legal rules to avoid the harsh results of applying rules to unforeseen circumstances. The second is the idea of judicial command: ordering the particular defendant in the circumstances to do equity without contradicting the common law. While the former has waned in the US, the latter has overly strengthened. The reasons of legal culture are discussed.
Procedural Common Law, Amy Coney Barrett
Procedural Common Law, Amy Coney Barrett
Journal Articles
Debates about the common lawmaking power of the federal courts focus exclusively on substantive common law. But federal common law is not limited to matters of substance; it reaches matters of procedure as well. Federal law includes a robust body of what might be called procedural common law - common law primarily concerned with the regulation of internal court processes rather than substantive rights and obligations. This body of law includes many doctrines that are fixtures in the law of procedure and federal courts. For example, abstention, forum non conveniens, remittitur, stare decisis, and preclusion can all fairly be characterized …
Sosa, Federal Question Jurisdiction, And Historical Fidelity, Anthony J. Bellia
Sosa, Federal Question Jurisdiction, And Historical Fidelity, Anthony J. Bellia
Journal Articles
In his paper "International Human Rights in American Courts," Judge Fletcher concludes that Sosa v. Alvarez-Machain “has left us with more questions than answers.” Sosa attempted to adapt certain principles belonging to the "general law" to a post-Erie positivistic conception of common law while maintaining fidelity to certain historical expectations. “[I]t would be unreasonable,” the Court thought, “to assume that the First Congress would have expected federal courts to lose all capacity to recognize enforceable international norms simply because the common law might lose some metaphysical cachet on the road to modern realism.” The Court was unwilling, however, out …