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Full-Text Articles in Law
What's Left Standing? Feca Citizen Suits And The Battle For Judicial Review, Kimberly L. Wehle
What's Left Standing? Feca Citizen Suits And The Battle For Judicial Review, Kimberly L. Wehle
All Faculty Scholarship
This Article discusses standing to sue the FEC with two principal objectives. First, it attempts to frame the doctrinal inconsistencies between Lujan and Akins that have given rise to ongoing FECA standing litigation and concludes that the Supreme Court should acknowledge its repudiation of Lujan in cases seeking election-related information. Second, it explores the question whether courts may be statutorily required to consider citizen challenges to FEC enforcement actions as a matter of justiciability theory in the first instance, and concludes that courts should turn to the oft-overlooked Akins decision in lieu of Lujan in reviewing suits brought under citizen-suit …
The State Secrets Privilege And Separation Of Powers, Amanda Frost
The State Secrets Privilege And Separation Of Powers, Amanda Frost
Articles in Law Reviews & Other Academic Journals
Since September 11, 2001, the Bush administration has repeatedly invoked the state secrets privilege in cases challenging executive conduct in the war on terror, arguing that the very subject matter of these cases must be kept secret to protect national security. The executive's recent assertion of the privilege is unusual, in that it is seeking dismissal, pre-discovery, of all challenges to the legality of specific executive branch programs, rather than asking for limits on discovery in individual cases. This essay contends that the executive's assertion of the privilege is therefore akin to a claim that the courts lack jurisdiction to …
Warming Up To Climate Change Litigation, Jonathan H. Adler
Warming Up To Climate Change Litigation, Jonathan H. Adler
Faculty Publications
The surprise in Massachusetts v. EPA was not that it was a close, hotly contested case. Rather, the surprise was the facility and ease with which the Court majority dispatched opposing arguments and redefined prior precedents. Not content to widen doctrines on the margins, Justice Stevens' majority opinion blazed a new path through the law of standing and unearthed newfound regulatory authority for the United States Environmental Protection Agency. Under the Court's new interpretation, the Clean Air Act ("CAA" or "the Act") provides EPA with roving authority, if not responsibility, to regulate any substance capable of causing or contributing to …
In Defense Of Mandatory Arbitration (If Imposed On The Company), Jean R. Sternlight
In Defense Of Mandatory Arbitration (If Imposed On The Company), Jean R. Sternlight
Scholarly Works
Having spent much of her academic life battling companies' mandatory imposition of binding arbitration on consumers and employees, the author now switches gears. This Article contemplates whether mandatory binding arbitration is acceptable if imposed by the government on companies (governmental mandatory arbitration) rather than by companies on their employees and consumers (private mandatory arbitration). Specifically, the Article considers the possibility of statutes that would provide little guys (consumers and employees) with an opportunity to take their disputes to binding arbitration rather than litigation. If the little guys chose arbitration over litigation, post-dispute, companies would have to agree to such arbitration, …
The Origins Of Article Iii "Arising Under" Jurisdiction, Anthony J. Bellia
The Origins Of Article Iii "Arising Under" Jurisdiction, Anthony J. Bellia
Journal Articles
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 …
Massachusetts V. Epa: Breaking New Ground On Issues Other Than Global Warming, Amy J. Wildermuth, Kathryn A. Watts
Massachusetts V. Epa: Breaking New Ground On Issues Other Than Global Warming, Amy J. Wildermuth, Kathryn A. Watts
Articles
In this essay, we consider the long-term legal significance of the Supreme Court's decision in Massachusetts v. EPA, concluding that the case is likely to have a significant impact on two doctrinal areas of the law: (1) the standing of states; and (2) the standard of review applied to denials of petitions for rulemaking. First, although we have some questions about the Court's reasoning, we are encouraged to see the beginning of a framework for evaluating state standing based on the interest of the state in the litigation. Second, with respect to judicial review of agency inaction in the rulemaking …