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Articles 1 - 28 of 28
Full-Text Articles in Law
Reign Of Error: District Courts Misreading The Supreme Court Over Rooker–Feldman Analysis, Thomas D. Rowe Jr., Edward L. Baskauskas
Reign Of Error: District Courts Misreading The Supreme Court Over Rooker–Feldman Analysis, Thomas D. Rowe Jr., Edward L. Baskauskas
Faculty Scholarship
Seventeen decisions in nine U.S. district courts from 2006 through 2019 have taken a demonstrably misgrounded starting point for Rooker–Feldman analysis. The cases have read language from a 2006 Supreme Court opinion, in which the Court quoted criteria stated by the lower court, as their guideline. But the Court summarily vacated the lower court’s judgment, and it had previously articulated, and has repeated, different criteria for federal courts to follow. The district-court decisions all appear to have reached correct results, but the mistake about criteria should be recognized and avoided as soon as possible before it creates potential mischief. And …
Supreme Court As Superweapon: A Response To Epps & Sitaraman, Stephen E. Sachs
Supreme Court As Superweapon: A Response To Epps & Sitaraman, Stephen E. Sachs
Faculty Scholarship
Is the Supreme Court's legitimacy in crisis? Daniel Epps and Ganesh Sitaraman argue that it is. In their Feature, How to Save the Supreme Court, they suggest legally radical reforms to restore a politically moderate Court. Unfortunately, their proposals might destroy the Court's legitimacy in order to save it. And their case that there is any crisis may fail to persuade a reader with different legal or political priors. If the Supreme Court needs saving, it will be saving from itself, and from too broad a conception of its own legal omnipotence. A Court that seems unbound by legal principle …
The Emergence Of The American Constitutional Law Tradition, H. Jefferson Powell
The Emergence Of The American Constitutional Law Tradition, H. Jefferson Powell
Faculty Scholarship
No abstract provided.
Erie As A Way Of Life, Ernest A. Young
Brief Of Professor Ernest A. Young As Amicus Curiae In Support Of Plaintiff Appellant Urging Reversal, Ernest A. Young
Brief Of Professor Ernest A. Young As Amicus Curiae In Support Of Plaintiff Appellant Urging Reversal, Ernest A. Young
Faculty Scholarship
No abstract provided.
Custom In Our Courts: Reconciling Theory With Reality In The Debate About Erie Railroad And Customary International Law, Nikki C. Gutierrez, Mitu Gulati
Custom In Our Courts: Reconciling Theory With Reality In The Debate About Erie Railroad And Customary International Law, Nikki C. Gutierrez, Mitu Gulati
Faculty Scholarship
One of the most heated debates of the last two decades in U.S. legal academia focuses on customary international law’s domestic status after Erie Railroad v. Tompkins. At one end, champions of the “modern position” support customary international law’s (“CIL”) wholesale incorporation into post-Erie federal common law. At the other end, “revisionists” argue that federal courts cannot apply CIL as federal law absent federal legislative authorization. Scholars on both sides of the Erie debate also make claims about the sources judges reference when discerning CIL. They then use these claims to support their arguments regarding CIL’s domestic status. Interestingly, neither …
Reciprocal Legitimation In The Federal Courts System, Neil S. Siegel
Reciprocal Legitimation In The Federal Courts System, Neil S. Siegel
Faculty Scholarship
Much scholarship in law and political science has long understood the U.S. Supreme Court to be the “apex” court in the federal judicial system, and so to relate hierarchically to “lower” federal courts. On that top-down view, exemplified by the work of Alexander Bickel and many subsequent scholars, the Court is the principal, and lower federal courts are its faithful agents. Other scholarship takes a bottom-up approach, viewing lower federal courts as faithless agents or analyzing the “percolation” of issues in those courts before the Court decides. This Article identifies circumstances in which the relationship between the Court and other …
Our Prescriptive Judicial Power: Constitutive And Entrenchment Effects Of Historical Practice In Federal Courts Law, Ernest A. Young
Our Prescriptive Judicial Power: Constitutive And Entrenchment Effects Of Historical Practice In Federal Courts Law, Ernest A. Young
Faculty Scholarship
Scholars examining the use of historical practice in constitutional adjudication have focused on a few high-profile separation-of-powers disputes, such as the recent decisions in NLRB v. Noel Canning and Zivotofsky v. Kerry. This essay argues that “big cases make bad theory” — that the focus on high-profile cases of this type distorts our understanding of how historical practice figures in constitutional adjudication more generally. I shift focus here to the more prosaic terrain of federal courts law, in which practice plays a pervasive role. That shift reveals two important insights: First, while historical practice plays an important constitutive role, structuring …
Practice And Precedent In Historical Gloss Games, Joseph Blocher, Margaret H. Lemos
Practice And Precedent In Historical Gloss Games, Joseph Blocher, Margaret H. Lemos
Faculty Scholarship
No abstract provided.
Reasoning About The Irrational: The Roberts Court And The Future Of Constitutional Law, H. Jefferson Powell
Reasoning About The Irrational: The Roberts Court And The Future Of Constitutional Law, H. Jefferson Powell
Faculty Scholarship
Commentary on the future direction of the Roberts Court generally falls along lines that correlate with the commentators' political views on the desirability of the Court's recent decisions. A more informative approach is to look for opinions suggesting changes in the presuppositions with which the Justices approach constitutional decision making. In footnote 27 in his opinion for the Court in the District of Columbia v. Heller Second Amendment decision, Justice Scalia suggested a fundamental revision of the Court's assumptions about the role of judicial doctrine, and the concept of rationality, in constitutional law. Justice Scalia would eliminate the normative aspects …
Roberts’ Rules: The Assertiveness Of Rules-Based Jurisprudence, Joseph Blocher
Roberts’ Rules: The Assertiveness Of Rules-Based Jurisprudence, Joseph Blocher
Faculty Scholarship
No abstract provided.
All Rise! Standing In Judge Betty Fletcher’S Court, Thomas D. Rowe Jr.
All Rise! Standing In Judge Betty Fletcher’S Court, Thomas D. Rowe Jr.
Faculty Scholarship
In this essay, based on a talk given at the Washington Law Review’s March 2009 symposium in honor of Senior Ninth Circuit Judge Betty Binns Fletcher and her three decades of service on that court, I selectively survey her opinions on justiciability issues: standing, ripeness, mootness, and political questions. A significant starting point for this survey is Professor Richard Pierce’s 1999 law review article, Is Standing Law or Politics?, arguing that many Supreme Court votes in standing cases generally, and appellate judges’ votes in environmental-standing cases specifically, can be explained better on the basis of politics than by reference to …
Further Reflections On Not Being “Not An Originalist”, H. Jefferson Powell
Further Reflections On Not Being “Not An Originalist”, H. Jefferson Powell
Faculty Scholarship
No abstract provided.
On Not Being “Not An Originalist”, H. Jefferson Powell
On Not Being “Not An Originalist”, H. Jefferson Powell
Faculty Scholarship
No abstract provided.
Preemption And Federal Common Law, Ernest A. Young
Preemption And Federal Common Law, Ernest A. Young
Faculty Scholarship
No abstract provided.
Universal Rights And Wrongs, Michael E. Tigar
Universal Rights And Wrongs, Michael E. Tigar
Faculty Scholarship
No abstract provided.
‘Chevron’ Deference And Foreign Affairs, Curtis A. Bradley
‘Chevron’ Deference And Foreign Affairs, Curtis A. Bradley
Faculty Scholarship
No abstract provided.
Our Imperial First Amendment, Paul D. Carrington
Our Imperial First Amendment, Paul D. Carrington
Faculty Scholarship
No abstract provided.
Calling The Tune Or Following The Lead: The European Court Of Justice In European Policy Making, Rachel D. Brewster
Calling The Tune Or Following The Lead: The European Court Of Justice In European Policy Making, Rachel D. Brewster
Faculty Scholarship
No abstract provided.
The Constitutional Limits Of Judicial Rulemaking: The Illegitimacy Of Mass-Tort Settlements Negotiated Under Federal Rule 23, Paul D. Carrington, Derek P. Apanovitch
The Constitutional Limits Of Judicial Rulemaking: The Illegitimacy Of Mass-Tort Settlements Negotiated Under Federal Rule 23, Paul D. Carrington, Derek P. Apanovitch
Faculty Scholarship
No abstract provided.
Why Cases Under The Guarantee Clause Should Be Justiciable, Erwin Chemerinsky
Why Cases Under The Guarantee Clause Should Be Justiciable, Erwin Chemerinsky
Faculty Scholarship
No abstract provided.
A Unified Approach To Justiciability, Erwin Chemerinsky
A Unified Approach To Justiciability, Erwin Chemerinsky
Faculty Scholarship
No abstract provided.
Making Rules To Dispose Of Manifestly Unfounded Assertions: An Exorcism Of The Bogy Of Non-Trans-Substantive Rules Of Civil Procedure, Paul D. Carrington
Making Rules To Dispose Of Manifestly Unfounded Assertions: An Exorcism Of The Bogy Of Non-Trans-Substantive Rules Of Civil Procedure, Paul D. Carrington
Faculty Scholarship
No abstract provided.
Reconsidering Supervisory Power In Criminal Cases: Constitutional And Statutory Limits On The Authority Of The Federal Courts, Sara Sun Beale
Reconsidering Supervisory Power In Criminal Cases: Constitutional And Statutory Limits On The Authority Of The Federal Courts, Sara Sun Beale
Faculty Scholarship
No abstract provided.
Ceremony And Realism: Demise Of Appellate Procedure, Paul D. Carrington
Ceremony And Realism: Demise Of Appellate Procedure, Paul D. Carrington
Faculty Scholarship
No abstract provided.
Adjudication As A Private Good: A Comment, Paul D. Carrington
Adjudication As A Private Good: A Comment, Paul D. Carrington
Faculty Scholarship
Comment on William M. Landes & Richard A. Posner, Adjudication as a Private Good, 8 J. Legal Stud. 235 (1979).
The Power Of District Judges And The Responsibility Of Courts Of Appeals, Paul D. Carrington
The Power Of District Judges And The Responsibility Of Courts Of Appeals, Paul D. Carrington
Faculty Scholarship
No abstract provided.
Political Questions: The Judicial Check On The Executive, Paul D. Carrington
Political Questions: The Judicial Check On The Executive, Paul D. Carrington
Faculty Scholarship
No abstract provided.