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Articles 1 - 5 of 5
Full-Text Articles in Law
The First Ever (Maybe) Original Jurisdiction Standings, Jay D. Wexler, David Hatton
The First Ever (Maybe) Original Jurisdiction Standings, Jay D. Wexler, David Hatton
Faculty Scholarship
One of the more interesting clauses of the Constitution is the one that gives the Supreme Court original jurisdiction to hear lawsuits brought by one state against another state. These cases have historically made up a consistent, though small, part of the Supreme Court’s docket, but nobody has yet to investigate how the various states have fared in these suits. In this article, we analyze all of the state versus state cases decided over the past 112 years and provide the first ever (we think) official standings of how the states stack up. Minnesota is the big winner.
Structuring Jurisdictional Rules And Standards, Scott Dodson, Elizabeth Mccuskey
Structuring Jurisdictional Rules And Standards, Scott Dodson, Elizabeth Mccuskey
Faculty Scholarship
Jonathan Remy Nash's article, On the Efficient Deployment of Rules and Standards to Define Federal Jurisdiction, bravely tackles and creatively merges-the dual debates over rules versus standards and the ideal contours of federal jurisdiction.' He proposes a revised regime in which rules define jurisdictional boundaries at the front end, while standards "migrate" into a discretionary abstention phase at the back end.2 This realignment, Nash argues, optimizes efficiency and predictability by placing a bright-line rule at the jurisdictional threshold, while promoting federalism by establishing a safety net that applies standards to claims that cross the threshold. 3 In this …
No History, No Certainty, No Legitimacy . . . No Problem: Originalism And The Limits Of Legal Theory, Gary S. Lawson
No History, No Certainty, No Legitimacy . . . No Problem: Originalism And The Limits Of Legal Theory, Gary S. Lawson
Faculty Scholarship
Professor Martin H. Redish is on the warpath. Like General Sherman marching toward Atlanta (or Justin Tuck marching toward Tom Brady), Professor Redish, together with Matthew Arnould,1 lays waste to every constitutional theory that he encounters. Originalism, with its “belief that constitutional interpretation should be characterized exclusively by an effort to determine the Constitution’s meaning by means of some form of historical inquiry,”2 generates “an often contrived and opaque veil of historical inquiry”3 that provides “an ideal smokescreen behind which judges may pursue their personal[,] moral, political[,] or economic goals with relative impunity.”4 Nontextual theories, for their part, “permit[] selective …
Clarity And Clarification: Grable Federal Questions In The Eyes Of Their Beholders, Elizabeth Mccuskey
Clarity And Clarification: Grable Federal Questions In The Eyes Of Their Beholders, Elizabeth Mccuskey
Faculty Scholarship
Jurists and commentators have repeated for centuries the refrain that jurisdictional rules should be clear.' Behind this mantra is the idea that clearly designed jurisdictional rules should enable trial courts to apply the law more easily and therefore allow litigants to predict more accurately how trial courts will rule.2 The mantra's ultimate goal is efficiency-that trial courts not labor too long on jurisdiction and, most important, that litigants can accurately predict the correct forum and choose to spend their money litigating the merits of their claim, rather than where it will be heard. Jurisdictional clarity largely is devoted …
An Economic Perspective On Preemption, Keith N. Hylton
An Economic Perspective On Preemption, Keith N. Hylton
Faculty Scholarship
This Essay has two goals. The first is to present an economic theory of preemption as a choice among regulatory regimes. The optimal regime choice model is used to generate specific implications for the court decisions on preemption of products liability claims. The second objective is to extrapolate from the regime choice model to consider its implications for broader controversies about preemption.